                              INTERNATIONAL COURT OF JUSTICE

                               REPORTS OF JUDGMENTS,
                            ADVISORY OPINIONS AND ORDERS

                                    WHALING
                                IN THE ANTARCTIC
                      (AUSTRALIA v. JAPAN: NEW ZEALAND intervening)

                               JUDGMENT OF 31 MARCH 2014

                                      2014
                              COUR INTERNATIONALE DE JUSTICE

                                 RECUEIL DES ARRÊTS,
                          AVIS CONSULTATIFS ET ORDONNANCES

                              CHASSE À LA BALEINE
                              DANS L’ANTARCTIQUE
                   (AUSTRALIE c. JAPON ; NOUVELLE-ZÉLANDE (intervenant))

                                  ARRÊT DU 31 MARS 2014

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                                                Official citation :
                     Whaling in the Antarctic (Australia v. Japan: New Zealand intervening),
                                     Judgment, I.C.J. Reports 2014, p. 226

                                            Mode officiel de citation :
                   Chasse à la baleine dans l’Antarctique (Australie c. Japon ; Nouvelle-Zélande
                                 (intervenant)), arrêt, C.I.J. Recueil 2014, p. 226

                                                                                1062
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-071178-4

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                                                            31 MARCH 2014

                                                              JUDGMENT

                                        WHALING
                                    IN THE ANTARCTIC
                      (AUSTRALIA v. JAPAN : NEW ZEALAND intervening)

                                  CHASSE À LA BALEINE
                                  DANS L’ANTARCTIQUE
                   (AUSTRALIE c. JAPON ; NOUVELLE‑ZÉLANDE (intervenant))

                                                            31 MARS 2014

                                                               ARRÊT

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                     226

                                                TABLE OF CONTENTS
                                                                                Paragraphs
                     Chronology of the Procedure                                                    1-29
                         I. Jurisdiction of the Court                                              30-41
                     II. Alleged Violations of International Obligations under
                         the Convention                                                           42-243
                           1. Introduction                                                         42-50
                              A. General overview of the Convention                                42-47
                              B. Claims by Australia and response by Japan                         48-50
                           2. Interpretation of Article VIII, paragraph 1, of the Conven-
                              tion51-97
                              A. The function of Article VIII                                      51-55
                              B. The relationship between Article VIII and the object and
                                 purpose of the Convention                                         56-58
                              C. The issuance of special permits                                   59-61
                              D. The standard of review                                            62-69
                              E. Meaning of the phrase “for purposes of scientific research”       70-97

                                 (a) The term “scientific research”                                73-86
                                 (b) The meaning of the term “for purposes of” in Arti-
                                     cle VIII, paragraph 1                                         87-97
                           3. JARPA II in light of Article VIII of the Convention                 98-227
                              A. Description of the programmes                                   100-126
                                 (a) JARPA                                                       100-108
                                 (b) JARPA II                                                    109-126
                                        (i) Research objectives                                  113-118
                                       (ii) Research period and area                             119-120
                                      (iii) Research methods and sample size                     121-125

                                      (iv) Effect on whale stocks                                    126
                              B. Whether the design and implementation of JARPA II are
                                 reasonable in relation to achieving the programme’s
                                 stated research objectives                                      127-227
                                 (a) Japan’s decisions regarding the use of lethal methods       128-144

                                 (b) The scale of the use of lethal methods in JARPA II          145-212

                                       (i)
                                           A comparison of JARPA II sample sizes
                                           to JARPA sample sizes                                 147-156

                     4

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                     227

                                      (ii)	Determination of species-specific sample sizes   157-198

                                          (1) Fin and humpback whales                        174-181
                                          (2) Antarctic minke whales                         182-198
                                      (iii) Comparison of sample size to actual take         199-212

                                (c) Additional aspects of the design and implementation
                                    of JARPA II                                              213-222
                                        (i) Open-ended time frame                            214-216
                                       (ii) Scientific output of JARPA II to date            217-219
                                      (iii) Co‑operation with other research institutions    220-222
                               (d) Conclusion regarding the application of Article VIII,
                                   paragraph 1, to JARPA II                                  223-227
                         4. Conclusions regarding alleged violations of the Schedule         228-233

                         5. Alleged non-compliance by Japan with its obligations under
                            paragraph 30 of the Schedule                                     234-243
                     III. Remedies                                                           244-246
                     Operative Clause                                                           247

                     5

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                     228

                                     INTERNATIONAL COURT OF JUSTICE

        2014
                                                       YEAR 2014
      31 March
     General List                                     31 March 2014
       No. 148

                                                WHALING
                                            IN THE ANTARCTIC
                             (AUSTRALIA v. JAPAN : NEW ZEALAND intervening)

                        Jurisdiction of the Court — Parties’ declarations under Article 36, paragraph 2,
                     of the Statute — Australia’s reservation — Disputes “concerning or relating to the
                     delimitation of maritime zones” or “arising out of, concerning, or relating to the
                     exploitation of any disputed area of or adjacent to any such maritime zone pending
                     its delimitation” — Dispute concerning maritime delimitation must exist for the
                     reservation to be applicable — No dispute as to maritime delimitation between the
                     Parties — Reservation not applicable — Japan’s objection to the Court’s jurisdic-
                     tion cannot be upheld.

                                                              *
                        Alleged violations of the International Convention for the Regulation of Whal-
                     ing.
                        Origins of the Convention — Schedule to the Convention — International
                     Whaling Commission — The Scientific Committee and its role — Guidelines
                     issued by the Commission.
                        Interpretation of Article VIII, paragraph 1, of the Convention — Article VIII
                     to be interpreted in light of the object and purpose of the Convention — Neither a
                     restrictive nor an expansive interpretation of Article VIII justified — Issuance of
                     special permits under Article VIII to kill, take and treat whales for purposes of
                     scientific research — Existence and limits of a State party’s discretion under Arti-
                     cle VIII — Standard of review to be applied by the Court when reviewing special
                     permits granted under Article VIII — Whether programme involves scientific
                     research — Whether, in the use of lethal methods, the programme’s design and
                     implementation are reasonable in relation to achieving its stated objectives —
                     Objective character of the standard of review — The Court not called upon to
                     resolve matters of scientific or whaling policy — The Court’s task only to ascertain
                     whether special permits granted in relation to JARPA II fall within scope of Arti-

                     6

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                     229 	             whaling in the antarctic (judgment)

                     cle VIII, paragraph 1 — Meaning of the phrase “for purposes of scientific
                     research” in Article VIII, paragraph 1 — Meaning of the terms “scientific
                     research” and “for purposes of” — Term “scientific research” not defined in the
                     Convention — Four criteria for “scientific research” advanced by Australia —
                     Criteria advanced by Australia not adopted by the Court — No need for the Court
                     to devise alternative criteria or to offer a general definition of “scientific
                     research” — Meaning of the term “for purposes of” — Irrelevance of the inten-
                     tions of individual government officials — Research objectives alone must be suf-
                     ficient to justify programme as designed and implemented.

                        JARPA II in light of Article VIII of the Convention.
                        Description of JARPA — Description of JARPA II — Four research objectives
                     identified in JARPA II Research Plan — No specified termination date stated in
                     Research Plan — Programme operates in Southern Ocean Sanctuary established
                     in paragraph 7 (b) of the Schedule to the Convention — Mix of lethal and
                     non‑lethal methods indicated in JARPA II Research Plan — Sample sizes for fin
                     and humpback whales according to Research Plan — Sample size for minke whales
                     according to Research Plan — No effect on whale stocks according to Research
                     Plan.

                             Application of standard of review to JARPA II — Japan’s decisions
                        r egarding the use of lethal methods — Non‑lethal methods not feasible at least
                       for some of data sought by JARPA II researchers — No basis to conclude
                       that use of lethal methods is per se unreasonable in context of JARPA II
                       — Research Plan should have included some analysis of feasibility of non‑lethal
                        methods — No evidence of studies of feasibility or practicability of non-
                         lethal methods — Scale of use of lethal methods in JARPA II — Comparison
                         of JARPA II sample sizes to JARPA sample sizes — Similarities in pro-
                         grammes cast doubt on argument that JARPA II objectives call for increased
                         minke whale sample size — Japan’s decision to proceed with JARPA II sam-
                         ple sizes prior to final review of JARPA — Five‑step process for determina-
                         tion of sample sizes — Determination of sample sizes for fin and humpback
                         whales — Effect on sample size of using 12‑year research period for fin and
                         humpback whales — Sample size for fin and humpback whales not large
                       enough to produce statistically relevant information on at least one central
                       research item — Research Plan provides only limited information regarding
                       basis for calculation of fin and humpback whale sample size — Determination
                       of sample size for minke whales — Research Plan lacks           transparency in
                       reasons for selecting particular sample sizes for individual research items —
                        Effect on sample size of using six‑year research period for minke whales — No
                     explanation how disparate research periods for three whale species is
                     c ompatible with research objectives — Lack of transparency regarding

                     decisions made in selecting sample sizes for individual research items —

                     Evidence provides scant justification for underlying decisions that generate
                      overall sample size — Gap between target sample sizes and actual take —
                      Evidence suggests target sample sizes larger than reasonable in
                      relation to objectives — Open‑ended time frame of JARPA II inconsistent
                       with Annex P — Scientific output of JARPA II to date minimal — Co‑
                       operation with other research institutions limited — JARPA II involves activi-
                         ties that can broadly be characterized as scientific research — Evidence does
                         not establish that design and implementation of programme are reasonable in
                         relation to stated objectives — Special permits granted in connection with

                     7

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                     230 	             whaling in the antarctic (judgment)

                      JARPA II not “for purposes of scientific research” pursuant to Article VIII,
                     paragraph 1.

                        Conclusions regarding alleged violations of paragraphs 7 (b), 10 (d) and 10 (e)
                     of the Schedule — Whaling that falls outside Article VIII, paragraph 1, other than
                     aboriginal subsistence whaling, is subject to these Schedule provisions — No need
                     to evaluate whether JARPA II has attributes of commercial whaling — Morato-
                     rium on commercial whaling (paragraph 10 (e)) — Zero catch limit — Japan has
                     not acted in conformity with its obligations in each year it issued special permits —
                     Factory ship moratorium (paragraph 10 (d)) — Japan has not acted in conformity
                     with its obligations in each of the seasons during which fin whales were taken,
                     killed and treated in JARPA II — Southern Ocean Sanctuary (paragraph 7 (b)) —
                     Japan has not acted in conformity with its obligations in each of the seasons of
                     JARPA II during which fin whales have been taken.

                        Conclusions regarding alleged non‑compliance with paragraph 30 of the Sched-
                     ule — JARPA II Research Plan submitted for review by the Scientific Committee
                     in advance of the granting of the first permit for the programme — JARPA II
                     Research Plan sets forth information specified by paragraph 30 — Duty of
                     co‑operation with the Commission and its Scientific Committee — Japan has met
                     the requirements of paragraph 30 as far as JARPA II is concerned.

                                                              *
                        Remedies — Measures going beyond declaratory relief warranted — Japan
                     required to revoke any extant authorization, permit or licence to kill, take or treat
                     whales in relation to JARPA II and refrain from granting any further permits in
                     pursuance of that programme — No need to order additional remedy requested by
                     Australia.

                                                       JUDGMENT

                     Present :	President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                                Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                                Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari ;
                                Judge ad hoc Charlesworth ; Registrar Couvreur.

                         In the case concerning whaling in the Antarctic,
                         between

                     8

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                     231 	             whaling in the antarctic (judgment)

                     Australia,
                     represented by
                       Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney‑
                          General’s Department,
                       as Agent, Counsel and Advocate ;
                       H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the
                          Netherlands,
                       as Co‑Agent ;
                       The Honourable Mark Dreyfus, Q.C., M.P., former Attorney‑General of
                          Australia,
                       Mr. Justin Gleeson, S.C., Solicitor‑General of Australia,
                       Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International
                          Law, University of Cambridge, member of the Institut de droit interna-
                          tional, Barrister, Matrix Chambers, London,
                       Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government
                          Solicitor,
                       Mr. Philippe Sands, Q.C., Professor of Law, University College London,
                          Barrister, Matrix Chambers, London,
                       Ms Laurence Boisson de Chazournes, Professor of International Law, Uni-
                          versity of Geneva,
                       as Counsel and Advocates ;
                       Ms Kate Cook, Barrister, Matrix Chambers, London,
                       Mr. Makane Mbengue, Associate Professor, University of Geneva,
                       as Counsel ;
                       Ms Anne Sheehan, Acting Assistant Secretary, Attorney‑General’s Department,

                       Mr. Michael Johnson, Principal Legal Officer, Attorney‑General’s Department,
                       Ms Danielle Forrester, Principal Legal Officer, Attorney‑General’s Department,
                       Ms Stephanie Ierino, Acting Principal Legal Officer, Attorney‑General’s
                          Department,
                       Ms Clare Gregory, Senior Legal Officer, Attorney‑General’s Department,
                       Ms Nicole Lyas, Acting Senior Legal Officer, Attorney‑General’s Department,
                       Ms Erin Maher, Legal Officer, Attorney‑General’s Department,
                       Mr. Richard Rowe, former Senior Legal Adviser, Department of Foreign
                          Affairs and Trade,
                       Mr. Greg French, Assistant Secretary, Department of Foreign Affairs and
                          Trade,
                       Mr. Jamie Cooper, Legal Officer, Department of Foreign Affairs and Trade,
                       Ms Donna Petrachenko, First Assistant Secretary, Department of Sustaina-
                          bility, Environment, Water, Population and Communities,

                         Mr. Peter Komidar, Director, Department of Sustainability, Environment,
                          Water, Population and Communities,
                         Mr. Bill de la Mare, Scientist, Australian Antarctic Division, Department of
                          Sustainability, Environment, Water, Population and Communities,

                         Mr. David Blumenthal, former Senior Adviser, Office of the Attorney‑General,
                         Ms Giulia Baggio, former Senior Adviser, Office of the Attorney‑General,

                     9

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                     232 	            whaling in the antarctic (judgment)

                       Mr. Todd Quinn, First Secretary, Embassy of Australia in the Kingdom of
                          the Netherlands,
                       as Advisers ;
                       Ms Mandy Williams, Administration Officer, Attorney‑General’s Department,
                       as Assistant,
                       and
                     Japan,
                     represented by
                       H.E. Mr. Koji Tsuruoka, Ambassador, Chief Negotiator for the Trans‑
                          Pacific Partnership Agreement Negotiations,
                       as Agent ;
                       H.E. Mr. Yasumasa Nagamine, Deputy Minister for Foreign Affairs,
                       H.E. Mr. Masaru Tsuji, Ambassador Extraordinary and Plenipotentiary of
                          Japan to the Kingdom of the Netherlands,
                       as Co‑Agents ;
                       Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre‑
                          La Défense, President of the Société française pour le droit international,
                          member of the Institut de droit international,
                       Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of
                          International Law, Oxford University, member of the Institut de droit
                          international,
                       Mr. Alan Boyle, Professor of International Law at the University of Edin-
                          burgh, member of the English Bar,
                       Mr. Yuji Iwasawa, Professor of International Law at the University of
                          Tokyo, member and former Chairperson of the Human Rights Committee,
                       Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International
                          Law, McGill University, member of the Bar of New York and the Law
                          Society of Upper Canada,
                       Mr. Shotaro Hamamoto, Professor of International Law, Kyoto University,
                       Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Minis-
                          try of Foreign Affairs,
                       as Counsel and Advocates ;
                       Mr. Takane Sugihara, Emeritus Professor of International Law, Kyoto Uni-
                          versity,
                       Ms Atsuko Kanehara, Professor of International Law, Sophia University
                          (Tokyo),
                       Mr. Masafumi Ishii, Director‑General, International Legal Affairs Bureau,
                          Ministry of Foreign Affairs,
                       Ms Alina Miron, Researcher, Centre de droit international de Nanterre
                          (CEDIN), University of Paris Ouest, Nanterre‑La Défense,
                       as Counsel ;
                       Mr. Kenji Kagawa, Deputy Director‑General, Fisheries Agency,
                       Mr. Noriyuki Shikata, Minister, Embassy of Japan in the United Kingdom of
                          Great Britain and Northern Ireland,
                       Mr. Tomohiro Mikanagi, Director, International Legal Affairs Division,
                          Ministry of Foreign Affairs,

                     10

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                     233 	           whaling in the antarctic (judgment)

                       Mr. Joji Morishita, IWC Commissioner, Director‑General, National Research
                            Institute of Far Seas Fisheries,
                       Mr. Tatsuo Hirayama, Director, Fishery Division, Ministry of Foreign
                            Affairs,
                       Mr. Takero Aoyama, Director, ICJ Whaling Case Division, Ministry of
                            Foreign Affairs,
                       Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Minis-
                          try of Foreign Affairs,
                       Ms Yuriko Akiyama, Ph.D., ICJ Whaling Case Division, Ministry of Foreign
                          Affairs,
                       Mr. Masahiro Kato, ICJ Whaling Case Division, Ministry of Foreign Affairs,

                       Mr. Hideki Moronuki, Senior Fisheries Negotiator, International Affairs
                          Division, Fisheries Agency,
                       Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division,
                          Fisheries Agency,
                       Mr. Shinji Hiruma, Assistant Director, International Affairs Division,
                          Fisheries Agency,
                       Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of
                           the Netherlands,
                       Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the King-
                           dom of the Netherlands,
                       Ms Risa Saijo, LL.M., Researcher, Embassy of Japan in the Kingdom of the
                           Netherlands,
                       Ms Héloïse Bajer‑Pellet, member of the Paris Bar,
                       as Advisers ;
                       Mr. Douglas Butterworth, Emeritus Professor, University of Cape Town,
                       Ms Judith E. Zeh, Ph.D., Research Professor Emeritus, University of
                           Washington,
                       as Scientific Advisers and Experts ;
                       Mr. Martin Pratt, Professor, Department of Geography, Durham University,
                       as Expert Adviser ;
                       Mr. James Harrison, Ph.D., Lecturer in International Law, University of
                            Edinburgh,
                       Ms Amy Sander, member of the English Bar,
                       Mr. Jay Butler, Visiting Associate Professor of Law, George Washington
                            University Law School, member of the New York Bar,
                       as Legal Advisers,
                     with New Zealand,
                     as a State whose Declaration of Intervention has been admitted by the Court,
                        represented by
                        Ms Penelope Ridings, International Legal Adviser, Ministry of Foreign
                           Affairs and Trade,
                        as Agent, Counsel and Advocate ;
                        H.E. Mr. George Troup, Ambassador of New Zealand to the Kingdom of the
                           Netherlands,
                        as Co‑Agent ;

                     11

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                     234 	             whaling in the antarctic (judgment)

                       The Honourable Christopher Finlayson Q.C., M.P., Attorney‑General of
                          New Zealand,
                       as Counsel and Advocate ;
                       Ms Cheryl Gwyn, Deputy Solicitor‑General, Crown Law Office,
                       Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
                       as Counsel ;
                       Mr. Andrew Williams, Legal Adviser, Ministry of Foreign Affairs and Trade,

                       Mr. James Christmas, Private Secretary, Attorney‑General’s Office,
                       Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the
                          Kingdom of the Netherlands,
                       Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand in the
                          Kingdom of the Netherlands,
                       as Advisers,

                       The Court,
                       composed as above,
                       after deliberation,
                       delivers the following Judgment :
                        1. On 31 May 2010, Australia filed in the Registry of the Court an Applica-
                     tion instituting proceedings against Japan in respect of a dispute concerning
                          “Japan’s continued pursuit of a large‑scale program of whaling under the
                          Second Phase of its Japanese Whale Research Program under Special
                          Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed
                           by Japan under the International Convention for the Regulation of
                           Whaling . . ., as well as its other international obligations for the preserva-
                          tion of marine mammals and the marine environment”.

                        In its Application, Australia invoked as the basis for the jurisdiction of the
                     Court the declarations made, pursuant to Article 36, paragraph 2, of the Statute
                     of the Court, by Australia on 22 March 2002 and by Japan on 9 July 2007.
                        2. In accordance with Article 40, paragraph 2, of the Statute, the Registrar
                     communicated the Application forthwith to the Government of Japan ; and,
                     pursuant to paragraph 3 of that Article, all other States entitled to appear before
                     the Court were notified of the Application.
                        3. On the directions of the Court under Article 43 of the Rules of Court, the
                     Registrar addressed to States parties to the International Convention for the
                     Regulation of Whaling (hereinafter the “ICRW” or the “Convention”) the noti-
                     fication provided for in Article 63, paragraph 1, of the Statute. In accordance
                     with the provisions of Article 69, paragraph 3, of the Rules of Court, the Regis-
                     trar also addressed to the International Whaling Commission (hereinafter the
                     “IWC” or the “Commission”) the notification provided for in Article 34, para-
                     graph 3, of the Statute. The Commission indicated that it did not intend to
                     submit any observations in writing under Article 69, paragraph 3, of the Rules
                     of Court.

                     12

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                     235 	             whaling in the antarctic (judgment)

                         4. Since the Court included upon the Bench no judge of Australian national-
                      ity, Australia proceeded to exercise its right conferred by Article 31, para-
                      graph 2, of the Statute to choose a judge ad hoc to sit in the case ; it chose
                      Ms Hilary Charlesworth.
                         5. By an Order of 13 July 2010, the Court fixed 9 May 2011 and 9 March 2012
                     as the respective time‑limits for the filing of the Memorial of Australia and
                     the Counter‑Memorial of Japan ; those pleadings were duly filed within the
                     time‑limits thus prescribed.
                         6. On 23 April 2012, the President of the Court met with the Agents of the
                     Parties in order to ascertain their views with regard to the organization of the oral
                      proceedings. At this meeting, the Agent of Australia stated that his Government
                      did not consider it necessary to organize a second round of written pleadings ; the
                      Agent of Japan, for his part, requested a second round of written pleadings.

                       The Court, having regard to Article 45, paragraph 2, of the Rules of Court,
                     decided that a second round of written pleadings was not necessary. By letters
                     dated 2 May 2012, the Registrar informed the Parties accordingly.

                                                               *
                        7. On 19 September 2012, the Government of New Zealand, referring to
                     Article 53, paragraph 1, of the Rules of Court, requested the Court to furnish it
                     with copies of the pleadings and documents annexed in the case. Having ascer-
                     tained the views of the Parties pursuant to that same provision, the Court
                     decided to grant this request. The documents in question were duly transmitted
                     to New Zealand.
                        8. On 20 November 2012, New Zealand, pursuant to Article 63, paragraph 2,
                     of the Statute, filed in the Registry of the Court a Declaration of Intervention in
                     the case. In its Declaration, New Zealand stated that it “avail[ed] itself of the
                     right . . . to intervene as a non‑party in the proceedings brought by Australia
                     against Japan in this case”.
                        9. In accordance with Article 83, paragraph 1, of the Rules of Court, the
                     Registrar, by letters dated 20 November 2012, transmitted certified copies of the
                     Declaration of Intervention to the Governments of Australia and Japan, which
                     were informed that the Court had fixed 21 December 2012 as the time‑limit for
                     the submission of written observations on that Declaration. In accordance with
                     paragraph 2 of the same Article, the Registrar also transmitted a copy of the
                     Declaration to the Secretary‑General of the United Nations, as well as to States
                     entitled to appear before the Court.

                        10. Australia and Japan each submitted written observations on New Zea-
                     land’s Declaration of Intervention within the time‑limit thus fixed. The Regis-
                     trar transmitted to each Party a copy of the other’s observations, and copies of
                     the observations of both Parties to New Zealand.
                        11. In the light of Article 84, paragraph 2, of the Rules of Court, and consid-
                     ering the absence of objections from the Parties, the Court took the view that it
                     was not necessary to hold hearings on the question of the admissibility of New
                     Zealand’s Declaration of Intervention.
                        12. By an Order of 6 February 2013, the Court decided that the Declaration
                     of Intervention filed by New Zealand pursuant to Article 63, paragraph 2, of the

                     13

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                     236 	             whaling in the antarctic (judgment)

                     Statute was admissible. The Court also fixed 4 April 2013 as the time‑limit for
                     the filing by New Zealand of the written observations referred to in Article 86,
                     paragraph 1, of the Rules of Court ; moreover, it authorized the filing by Aus-
                     tralia and Japan of written observations on those submitted by New Zealand,
                     and fixed 31 May 2013 as the time‑limit for such filing.

                         13. New Zealand duly filed its written observations within the time‑limit thus
                     fixed. The Registrar transmitted copies of New Zealand’s written observations
                     to the Parties.
                         Japan then filed, within the time‑limit prescribed by the Court in its Order of
                     6 February 2013, its observations on those filed by New Zealand. The Registrar
                     transmitted copies of Japan’s written observations to Australia and to New
                     Zealand.
                         Australia, for its part, notified the Court, by letter dated 31 May 2013, that it
                      would not submit such observations, but that it “reserve[d] its right to address
                      certain points raised in the written observations of New Zealand in the course of
                      oral argument”. The Registrar communicated copies of this letter to Japan and
                      to New Zealand.

                                                              *
                        14. By letters dated 17 October 2012, the Registrar informed the Parties that
                     the Court had requested that they provide, by 28 December 2012, information
                     regarding expert evidence which they intended to produce, including the details
                     referred to in Article 57 of the Rules of Court. The Registrar informed the Par-
                     ties, moreover, that each Party would then be given an opportunity to comment
                     on the other’s communication, and if necessary to amend the information it had
                     given, including the list of experts to be called at the hearing, by 28 Janu-
                     ary 2013. Finally, the Registrar informed the Parties that the Court had decided
                     that each Party should communicate to it, by 15 April 2013, the full texts of the
                     statements of the experts whom the Parties intended to call at the hearings.

                        15. By letters dated 18 December 2012 and 26 December 2012, respectively,
                     the Agents of Australia and Japan each communicated information concerning
                     one expert to be called at the hearing. By a letter dated 25 January 2013, the
                     Co‑Agent of Australia communicated such information regarding a second
                     expert.
                        16. By letters dated 15 April 2013, the Parties communicated the full
                     texts of the statements of the experts whom the Parties intended to call at the
                     hearings. These texts were exchanged between the Parties and transmitted to
                     New Zealand.
                        17. By letters dated 23 April 2013, the Registrar informed the Parties that the
                     Court had decided that they could submit written statements in response to the
                     statement submitted by each of the other Party’s experts, and had fixed
                     31 May 2013 as the time‑limit for such submission. Within the time‑limit thus
                     fixed, Australia submitted such statements in response from the two experts it
                     would call at the hearing, and Japan submitted certain observations in response
                     to the statements by the two experts to be called by Australia.

                                                              *
                     14

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                     237 	             whaling in the antarctic (judgment)

                        18. In accordance with Article 53, paragraph 2, of the Rules of Court, the
                     Court, after ascertaining the views of the Parties, decided that copies of the
                     pleadings and documents annexed would be made accessible to the public on the
                     opening of the oral proceedings. After consulting the Parties and New Zealand,
                     the Court decided that the same should apply to the written observations of the
                     intervening State and of the Parties on the subject‑matter of the intervention, as
                     well as to the written statements of experts called to give evidence in the case,
                     and the written statements and observations in response.
                        19. Public hearings were held between 26 June and 16 July 2013, at which the
                     Court heard the oral arguments and replies of :
                     For Australia :    Mr. Bill Campbell,
                                        Mr. Justin Gleeson,
                                        Ms Laurence Boisson de Chazournes,
                                        Mr. Henry Burmester,
                                        Mr. James Crawford,
                                        Mr. Philippe Sands,
                                        Mr. Mark Dreyfus.
                     For Japan :        Mr. Koji Tsuruoka,
                                        Mr. Alain Pellet,
                                        Mr. Payam Akhavan,
                                        Mr. Shotaro Hamamoto,
                                        Mr. Alan Boyle,
                                        Mr. Vaughan Lowe,
                                        Ms Yukiko Takashiba,
                                        Mr. Yuji Iwasawa.
                     For New Zealand : Ms Penelope Ridings,
                                        Mr. Christopher Finlayson.
                         20. During the public hearings of 27 June 2013, Australia called the following
                     experts : Mr. Marc Mangel, Distinguished Research Professor of Mathematical
                     Biology and Director of the Center for Stock Assessment Research, University
                     of California, Santa Cruz ; and Mr. Nick Gales, Chief Scientist of the Australian
                     Antarctic Program. Mr. Mangel was examined by Mr. Philippe Sands, counsel
                     for Australia, and cross‑examined by Mr. Vaughan Lowe, counsel for Japan.
                     Mr. Gales was examined by Mr. Justin Gleeson, counsel for Australia,
                     and cross‑examined by Mr. Vaughan Lowe, counsel for Japan. He was then
                     re‑examined by Mr. Gleeson. Several judges put questions to Mr. Mangel and
                      to Mr. Gales, to which they replied orally.

                        21. During the public hearing on the afternoon of 3 July 2013, Japan called
                     Mr. Lars Walløe, Professor Emeritus of the University of Oslo and Scientific
                     Adviser to the Norwegian Government on Marine Mammals. He was examined
                     by Mr. Vaughan Lowe, counsel for Japan, and cross‑examined by Mr. Jus-
                     tin Gleeson, counsel for Australia. Several judges put questions to Mr. Walløe,
                     to which he replied orally.
                        22. At the hearings, some judges put questions to the Parties, and to New
                     Zealand as intervening State, to which replies were given orally and in writing.
                     The Parties and New Zealand presented their comments on those replies.

                                                             *
                     15

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                       23. In its Application, Australia made the following claims :
                             “For [the] reasons [set forth in its Application], and reserving the right
                          to supplement, amplify or amend the present Application, Australia requests
                          the Court to adjudge and declare that Japan is in breach of its international
                          obligations in implementing the JARPA II program in the Southern Ocean.
                             In addition, Australia requests the Court to order that Japan :
                          (a) cease implementation of JARPA II ;
                          (b) revoke any authorizations, permits or licences allowing the activities
                               which are the subject of this application to be undertaken ; and
                          (c) provide assurances and guarantees that it will not take any further
                               action under the JARPA II or any similar program until such program
                               has been brought into conformity with its obligations under interna-
                               tional law.”

                       24. In the course of the written proceedings, the following submissions were
                     presented by the Parties :
                     On behalf of the Government of Australia,
                     in the Memorial :
                             “1. For the reasons given in this Memorial, and reserving the right to
                          supplement, amplify or amend the present submissions, Australia requests
                          the Court to adjudge and declare that Japan is in breach of its international
                          obligations in authorizing and implementing JARPA II in the Southern
                          Ocean.
                             2. In particular, the Court is requested to adjudge and declare that, by
                          its conduct, Japan has violated its international obligations to :

                          (a) observe the zero catch limit in relation to the killing of whales for com-
                               mercial purposes ;
                          (b) refrain from undertaking commercial whaling of fin whales in the
                               Southern Ocean Sanctuary ; and
                          (c) observe the moratorium on taking, killing or treating of whales, except
                               minke whales, by factory ships or whale catchers attached to factory
                               ships.
                             3. Further, the Court is requested to adjudge and declare that JARPA II
                          is not a program for purposes of scientific research within the meaning of
                          Article VIII of the International Convention for the Regulation of Whaling.

                             4. Further, the Court is requested to adjudge and declare that Japan shall :
                          (a) refrain from authorizing or implementing any special permit whaling
                               which is not for purposes of scientific research within the meaning of
                               Article VIII ;
                          (b) cease with immediate effect the implementation of JARPA II ; and

                          (c) revoke any authorization, permit or licence that allows the implemen-
                              tation of JARPA II.”
                     On behalf of the Government of Japan,
                     in the Counter‑Memorial :

                     16

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                     239 	             whaling in the antarctic (judgment)

                            “On the basis of the facts and arguments set out [in its Counter‑
                          Memorial], and reserving its right to supplement or amend these sub
                          missions, Japan requests that the Court adjudge and declare :
                            — that it lacks jurisdiction over the claims brought against Japan
                                by Australia, referred to it by the Application of Australia of
                                31 May 2010 ;
                            — in the alternative, that the claims of Australia are rejected.”

                       25. At the oral proceedings, the following submissions were presented by the
                     Parties :
                     On behalf of the Government of Australia,
                            “1. Australia requests the Court to adjudge and declare that the Court
                          has jurisdiction to hear the claims presented by Australia.
                            2. Australia requests the Court to adjudge and declare that Japan is in
                          breach of its international obligations in authorizing and implementing the
                          Japanese Whale Research Program under Special Permit in the Antarctic
                          Phase II (JARPA II) in the Southern Ocean.

                             3. In particular, the Court is requested to adjudge and declare that, by
                          its conduct, Japan has violated its international obligations pursuant to the
                          International Convention for the Regulation of Whaling to :
                          (a) observe the zero catch limit in relation to the killing of whales for com-
                               mercial purposes in paragraph 10 (e) of the Schedule ;
                          (b) refrain from undertaking commercial whaling of fin whales in the
                               Southern Ocean Sanctuary in paragraph 7 (b) of the Schedule ;

                          (c) observe the moratorium on taking, killing or treating of whales, except
                              minke whales, by factory ships or whale catchers attached to factory
                              ships in paragraph 10 (d) of the Schedule ; and

                          (d) comply with the requirements of paragraph 30 of the Schedule.
                             4. Further, the Court is requested to adjudge and declare that JARPA II
                          is not a program for purposes of scientific research within the meaning of
                          Article VIII of the International Convention for the Regulation of Whaling.

                             5. Further, the Court is requested to adjudge and declare that Japan
                          shall :
                          (a) refrain from authorizing or implementing any special permit whaling
                               which is not for purposes of scientific research within the meaning of
                               Article VIII ;
                          (b) cease with immediate effect the implementation of JARPA II ; and
                          (c) revoke any authorization, permit or licence that allows the implemen-
                               tation of JARPA II.”
                     On behalf of the Government of Japan,
                            “Japan requests that the Court adjudge and declare :
                          1. —	 that it lacks jurisdiction over the claims brought against Japan by
                                Australia, referred to it by the Application of Australia of
                                31 May 2010 ; and

                     17

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                     240 	             whaling in the antarctic (judgment)

                             —	 that, consequently, the Application of New Zealand for permission
                               to intervene in the proceedings instituted by Australia against Japan
                               lapses ;
                          2.		 in the alternative, that the claims of Australia are rejected.”

                                                             *
                       26. At the end of the written observations submitted by it in accordance with
                     Article 86, paragraph 1, of the Rules of Court, New Zealand stated :

                             “In summary, the provisions of Article VIII must be interpreted in good
                          faith in their context and in light of the object and purpose of the Conven-
                          tion, taking account of subsequent practice of the parties and applicable
                          rules of international law, as confirmed by supplementary means of inter-
                          pretation. On the basis of those considerations, Article VIII is properly to
                          be interpreted as follows :
                          (a) Article VIII forms an integral part of the system of collective regulation
                               established by the Convention, not an exemption from it. As such, it
                               cannot be applied to permit whaling where the effect of that whaling
                               would be to circumvent the other obligations of the Convention or to
                               undermine its object and purpose.

                          (b) Only whaling that is conducted ‘in accordance with’ Article VIII is
                              exempt from the operation of the Convention.

                          (c) Article VIII only permits a Contracting Government to issue a Special
                              Permit for the exclusive ‘purposes of scientific research’. The purpose
                              for which a Special Permit has been issued is a matter for objective
                              determination, taking account of the programme’s methodology,
                              design and characteristics, including : the scale of the programme ; its
                              structure ; the manner in which it is conducted ; and its results.
                          (d) Article VIII requires a Contracting Government issuing a Special Per-
                              mit to limit the number of whales to be killed under that permit to a
                              level that is the lowest necessary for and proportionate to the objectives
                              of that research, and that can be demonstrated will have no adverse
                              effect on the conservation of stocks.
                          (e) A Contracting Government issuing a Special Permit must discharge its
                              duty of meaningful co-operation, and demonstrate that it has taken
                              proper account of the views of the Scientific Committee and the Com-
                              mission.
                          (f) Only whaling under Special Permit that meets all three of the require-
                              ments of Article VIII outlined above is permitted under Article VIII.”

                        27. In the written observations which the Court, by its Order of 6 Febru-
                     ary 2013, authorized the Parties to submit on those filed by New Zealand, Japan
                     stated inter alia :
                             — “Japan submits that the Court should defer its consideration of New
                               Zealand’s request until it has decided whether it has jurisdiction to
                               examine Australia’s Application” ; and [. . .]

                     18

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                     241 	             whaling in the antarctic (judgment)

                             — “New Zealand reaches erroneous conclusions on a number of points
                               that are pertinent to the present case. New Zealand . . . misstates the
                               scope of the discretion expressly reserved to the Contracting Govern-
                               ments by Article VIII of the ICRW, particularly in relation to research
                               methods and sample sizes as well as to the duty of co-operation. New
                               Zealand also attempts to reverse the burden of proof with regard to
                               the precautionary approach, to the procedural duties incumbent upon
                               Contracting Governments issuing special permits, and to the determi-
                               nation of what constitutes ‘scientific purposes’ under Article VIII of
                               the ICRW. Japan submits that New Zealand’s characterization of
                               each of these points is incorrect.

                             — New Zealand implicitly requests the Court to substitute its own judg-
                               ment for that of the Government of Japan as to the character of the
                               special permits granted by Japan. It is respectfully submitted that the
                               Court does not have such a power and cannot substitute its own
                               appreciation for that of a Contracting Government granting a special
                               permit.”
                       28. Australia, for its part, did not submit any written observations (see para-
                     graph 13 above).
                       29. At the end of the oral observations which it presented with respect to the
                     subject‑matter of its intervention, in accordance with Article 86, paragraph 2, of
                     the Rules of Court, New Zealand stated inter alia :
                             “[T]he Convention establishes a system of collective regulation for the
                          conservation and management of whale stocks. Article VIII must be inter-
                          preted in light of that object and purpose.
                             Article VIII permits the grant of special permits only to take whales ‘for
                          purposes of scientific research’. Japan has sought to mystify the determina-
                          tion of what is scientific research, and to accord for itself the right to decide
                          whether a programme of whaling is for that purpose . . .

                             Even where a Contracting Government issues a special permit ‘for pur-
                          poses of scientific research’, it is still required to ensure that the number of
                          whales to be killed under that permit is the lowest necessary for, and pro-
                          portionate to, the scientific purpose, and takes into account the collective
                          interests of the parties. This is a matter for objective determination in light
                          of the facts, as evidenced through the Guidelines and resolutions of the
                          Scientific Committee and the Commission.

                            There is, in any case, a substantive duty of meaningful co‑operation on
                          a Contracting Government which proposes to issue a special permit. This
                          requires it to show that it has taken into account the legitimate interests of
                          the other parties to the Convention ; that it has balanced the interests of all
                          the parties in the conservation and management of whale stocks.”

                                                                *
                                                            *       *

                     19

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                     242 	                   whaling in the antarctic (judgment)

                                                      I. Jurisdiction of the Court

                          30. In the present case Australia contends that Japan has breached
                     certain obligations under the ICRW to which both States are parties
                      by issuing special permits to take whales within the framework of
                      JARPA II. Japan maintains that its activities are lawful because the
                      special permits are issued for “purposes of scientific research”, as pro-
                       vided by Article VIII of the ICRW. The Court will first examine whether
                       it has jurisdiction over the dispute.
                          31. Australia invokes as the basis of the Court’s jurisdiction the decla-
                       rations made by both Parties under Article 36, paragraph 2, of the Court’s
                       Statute. Australia’s declaration of 22 March 2002 reads in relevant part
                       as follows :
                              “The Government of Australia declares that it recognizes as com-
                          pulsory ipso facto and without special agreement, in relation to any
                          other State accepting the same obligation, the jurisdiction of the Inter-
                          national Court of Justice in conformity with paragraph 2 of Article 36
                          of the Statute of the Court, until such time as notice may be given to
                          the Secretary‑General of the United Nations withdrawing this decla-
                          ration. This declaration is effective immediately.
                              This declaration does not apply to :
                          �����������������������������������������������������������������������������������������������������������������
                          (b) any dispute concerning or relating to the delimitation of maritime
                                zones, including the territorial sea, the exclusive economic zone
                                and the continental shelf, or arising out of, concerning, or relating
                                to the exploitation of any disputed area of or adjacent to any such
                                maritime zone pending its delimitation.”

                       Japan’s declaration of 9 July 2007 reads in relevant part as follows :

                            “Japan recognizes as compulsory ipso facto and without special
                          agreement, in relation to any other State accepting the same obligation
                          and on condition of reciprocity, the jurisdiction of the International
                          Court of Justice, over all disputes arising on and after 15 September
                          1958 with regard to situations or facts subsequent to the same date
                          and being not settled by other means of peaceful settlement.”
                       32. Japan contests the jurisdiction of the Court over the dispute sub-
                     mitted by Australia with regard to JARPA II, arguing that it falls within
                     Australia’s reservation (b), which it invokes on the basis of reciprocity.
                     While acknowledging that this dispute does not concern or relate to the
                     delimitation of maritime zones, Japan maintains that it is a dispute “aris-
                     ing out of, concerning, or relating to the exploitation of any disputed area
                     of or adjacent to any such maritime zone pending its delimitation”.

                     20

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                     243 	           whaling in the antarctic (judgment)

                        In Japan’s view, the latter part of Australia’s reservation, introduced
                     by the second conjunction “or”, is separate from the first part, with the
                     consequence that the reservation applies both to disputes on delimitation
                     and to other kinds of disputes involving the exploitation of maritime
                     zones or adjacent areas pending delimitation. Japan adds that this inter-
                     pretation is in conformity with Australia’s intention when making the
                     declaration. According to Japan, the phrase “pending its delimitation”
                     merely describes a point in time, but not the subject‑matter of the dispute
                     excluded from the Court’s jurisdiction.
                        Japan maintains that the present dispute “relates to the exploitation”
                     of a maritime zone claimed by Australia or of an area adjacent to such a
                     zone. Japan argues that this would be the case under Australia’s charac-
                     terization of JARPA II as a programme for the commercial exploitation
                     of whales, as well as under Japan’s own characterization of JARPA II as
                     a scientific research programme, given that the research conducted under
                     JARPA II is “an element of the process leading to exploitation”.
                        33. Japan further contends that the dispute between the Parties relates
                     to a disputed area in the sense of the reservation, given that
                          “the JARPA II programme is taking place in or around maritime areas
                          Australia claims to be part of its exclusive economic zone (EEZ), the
                          rights of which are generated, according to Australia’s claims, by its
                          purported sovereignty over a large part of the Antarctic continent”.
                        In Japan’s view, these m aritime areas are disputed since it does not
                     recognize Australia’s claims and considers the areas in question to be part
                     of the high seas. Conceding that the area of operation of JARPA II and
                     the areas of the Southern Ocean claimed by Australia do not overlap pre-
                     cisely, Japan argues that this is irrelevant because the Australian reserva-
                     tion also includes the waters that are “adjacent” to the area in dispute,
                     the term being understood broadly by Australia.

                       34. Australia rejects Japan’s interpretation of its reservation, maintain-
                     ing that
                          “the reservation only operates in relation to disputes between Aus-
                          tralia and another country with a maritime claim that overlaps with
                          that of Australia — that is, a situation of delimitation. Australia has
                          no delimitation [dispute] with Japan and hence the paragraph (b)
                          reservation can have no operation.”
                     It adds that “[i]n particular, the reservation does not cover a dispute con-
                     cerning the validity, or otherwise, under the 1946 Convention, of Japan’s
                     JARPA II programme, a dispute entirely unconnected with any delimita-
                     tion situation”.
                        According to Australia, the intent underlying the reservation was to
                     give effect to its “belief that its overlapping maritime claims are best
                     resolved by negotiations”, especially the complex maritime boundary
                     delimitations with New Zealand and Timor‑Leste that were ongoing at

                     21

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                     244 	           whaling in the antarctic (judgment)

                     the time the declaration was made. Australia maintains that the wording
                     of the reservation is to be understood against this background. Thus, the
                     purpose of the second part of the reservation

                          “is to make clear [that] the reservation extends beyond disputes over
                          delimitation of maritime zones per se, to associated disputes concern-
                          ing [the] exploitation of resources that may arise between the States
                          with overlapping maritime claims pending delimitation”.

                       Australia also contests Japan’s view that the dispute over JARPA II is
                     about “exploitation” in the sense of its reservation, arguing that the
                     exploitation contemplated by the reservation is “exploitation of resources
                     covered by a potential delimitation arrangement and not any exploitation
                     unrelated to that delimitation situation that happens to occur in the rele-
                     vant geographic area”.

                         35. Australia furthermore contends that the geographic area of opera-
                     tion of JARPA II, which in any event extends well outside any waters
                     claimed by it, cannot determine the Court’s jurisdiction over a treaty
                     dispute that is unrelated to the status of the waters in which the activ-
                      ity occurs. According to Australia, “[t]he dispute before the Court
                      concerning compliance of JARPA II with the whaling Convention exists
                       whether or not Australia asserts maritime zones adjacent to Antarctica
                       and irrespective of any delimitation with adjacent claimants”. Australia
                       emphasizes that, in the maritime context, the word “delimitation” has
                       a specific meaning, referring solely to “the fixing of boundaries between
                       neighbouring States, whether adjacent or opposite”.

                        36. The Court recalls that, when interpreting a declaration accepting
                     its compulsory jurisdiction, it “must seek the interpretation which is in
                     harmony with a natural and reasonable way of reading the text, having
                     due regard to the intention” of the declaring State (Anglo‑Iranian Oil Co.
                     (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports
                     1952, p. 104). The Court noted in the Fisheries Jurisdiction case that it
                     had “not hesitated to place a certain emphasis on the intention of the
                     depositing State” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of
                     the Court, Judgment, I.C.J. Reports 1998, p. 454, para. 48). The Court
                     further observed that
                          “[t]he intention of a reserving State may be deduced not only from
                          the text of the relevant clause, but also from the context in which the
                          clause is to be read, and an examination of evidence regarding the
                          circumstances of its preparation and the purposes intended to be
                          served” (ibid., p. 454, para. 49).
                       37. Reservation (b) contained in Australia’s declaration (see para-
                     graph 31 above) refers to disputes concerning “the delimitation of mari-

                     22

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                     245 	           whaling in the antarctic (judgment)

                     time zones” or to those “arising out of, concerning, or relating to the
                     exploitation of any disputed area of or adjacent to any such maritime
                     zone pending its delimitation”. The wording of the second part of the
                     reservation is closely linked to that of the first part. The reservation thus
                     has to be read as a unity. The disputes to which the reservation refers
                     must either concern maritime delimitation in an area where there are
                     overlapping claims or the exploitation of such an area or of an area adja-
                     cent thereto. The existence of a dispute concerning maritime delimitation
                     between the Parties is required according to both parts of the reservation.

                        38. The meaning which results from the text of the reservation is con-
                     firmed by the intention stated by Australia when it made its declaration
                     accepting the compulsory jurisdiction of the Court. According to a press
                     release issued by the Attorney‑General and the Minister for Foreign
                     Affairs of Australia on 25 March 2002, the reservation excluded “disputes
                     involv[ing] maritime boundary delimitation or disputes concerning the
                     exploitation of an area in dispute or adjacent to an area in dispute”. The
                     same statement is contained in the National Interest Analysis submitted
                     by the Attorney‑General to Parliament on 18 June 2002, which referred
                     to “maritime boundary disputes” as the object of the reservation. Thus,
                     the reservation was intended to cover, apart from disputes concerning the
                     delimitation of maritime zones, those relating to the exploitation of an
                     area in respect of which a dispute on delimitation exists, or of a maritime
                     area adjacent to such an area. The condition of a dispute between the
                     parties to the case concerning delimitation of the maritime zones in ques-
                     tion was clearly implied.
                        39. Both Parties acknowledge that the dispute before the Court is not
                     a dispute about maritime delimitation. The question remains whether
                     JARPA II involves the exploitation of an area which is the subject of a
                     dispute relating to delimitation or of an area adjacent to it.

                        Part of the whaling activities envisaged in JARPA II take place in the
                     maritime zone claimed by Australia as relating to the asserted Australian
                     Antarctic Territory or in an adjacent area. Moreover, the taking of
                     whales, especially in considerable numbers, could be viewed as a form of
                     exploitation of a maritime area even if this occurs according to a pro-
                     gramme for scientific research. However, while Japan has contested Aus-
                     tralia’s maritime claims generated by the asserted Australian Antarctic
                     Territory, it does not claim to have any sovereign rights in those areas.
                     The fact that Japan questions those maritime entitlements does not ren-
                     der the delimitation of these maritime areas under dispute as between the
                     Parties. As the Court stated in the Territorial and Maritime Dispute case,
                     “the task of delimitation consists in resolving the overlapping claims by
                     drawing a line of separation between the maritime areas concerned” (Ter-
                     ritorial and Maritime Dispute (Nicaragua v. Colombia), Judgment,
                     I.C.J. Reports 2012 (II), pp. 674‑675, para. 141). There are no overlap-

                     23

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                     246 	           whaling in the antarctic (judgment)

                     ping claims of the Parties to the present proceedings which may render
                     reservation (b) applicable.

                        40. Moreover, it is significant that Australia alleges that Japan has
                     breached certain obligations under the ICRW and does not contend that
                     JARPA II is unlawful because the whaling activities envisaged in the pro-
                     gramme take place in the maritime zones over which Australia asserts
                     sovereign rights or in adjacent areas. The nature and extent of the claimed
                     maritime zones are therefore immaterial to the present dispute, which is
                     about whether or not Japan’s activities are compatible with its obliga-
                     tions under the ICRW.

                       41. The Court therefore concludes that Japan’s objection to the Court’s
                     jurisdiction cannot be upheld.

                             II. Alleged Violations of International Obligations
                                            under the Convention

                                                   1. Introduction
                     A. General overview of the Convention
                        42. The present proceedings concern the interpretation of the Interna-
                     tional Convention for the Regulation of Whaling and the question
                     whether special permits granted for JARPA II are for purposes of scien-
                     tific research within the meaning of Article VIII, paragraph 1, of the Con-
                     vention. Before examining the relevant issues, the Court finds it useful to
                     provide a general overview of the Convention and its origins.

                       43. The ICRW was preceded by two multilateral treaties relating to
                     whaling. The Convention for the Regulation of Whaling, adopted in
                     1931, was prompted by concerns over the sustainability of the whaling
                     industry. This industry had increased dramatically following the advent
                     of factory ships and other technological innovations that made it possible
                     to conduct extensive whaling in areas far from land stations, including in
                     the waters off Antarctica. The 1931 Convention prohibited the killing of
                     certain categories of whales and required whaling operations by vessels of
                     States parties to be licensed, but failed to address the increase in overall
                     catch levels.

                       This increase in catch levels and a concurrent decline in the price of
                     whale oil led to the adoption of the 1937 International Agreement for the

                     24

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                     247 	            whaling in the antarctic (judgment)

                     Regulation of Whaling (hereinafter “the 1937 Agreement”). The Preamble
                     of this Agreement expressed the desire of the States parties “to secure the
                     prosperity of the whaling industry and, for that purpose, to maintain the
                     stock of whales”. The treaty prohibited the taking of certain catego-
                     ries of whales, designated seasons for different types of whaling, closed
                     certain geographic areas to whaling and imposed further regulations on
                      the industry. As had already been the case under the 1931 Convention,
                      States parties were required to collect from all the whales taken certain
                      biological information which, together with other statistical data, was to
                      be transmitted to the International Bureau for Whaling Statistics in Nor-
                      way. The 1937 Agreement also provided for the issuance by a “Contract-
                      ing Government . . . to any of its nationals [of] a special permit
                      authorizing that national to kill, take and treat whales for purposes of
                      scientific research”. Three Protocols to the 1937 Agreement subsequently
                      placed some additional restrictions on whaling activities.

                        44. In 1946, an international conference on whaling was convened on
                     the initiative of the United States. The aims of the conference, as described
                     by Mr. Dean Acheson, then Acting Secretary of State of the United
                     States, in his opening address, were “to provide for the co-ordination
                     and codification of existant regulations” and to establish an “effective
                     administrative machinery for the modification of these regulations from
                     time to time in the future as conditions may require”. The conference
                     adopted, on 2 December 1946, the International Convention for the
                     Regulation of Whaling, the only authentic text of which is in the English
                      language. The Convention entered into force for Australia on 10 November
                      1948 and for Japan on 21 April 1951. New Zealand deposited its instru-
                      ment of ratification on 2 August 1949, but gave notice of withdrawal on
                      3 October 1968 ; it adhered again to the Convention with effect from
                      15 June 1976.
                        45. In contrast to the 1931 and 1937 treaties, the text of the ICRW
                      does not contain substantive provisions regulating the conservation of
                      whale stocks or the management of the whaling industry. These are to be
                      found in the Schedule, which “forms an integral part” of the Convention,
                      as is stated in Article I, paragraph 1, of the latter. The Schedule is subject
                      to amendments, to be adopted by the IWC. This Commission, established
                      under Article III, paragraph 1, of the Convention, is given a significant
                      role in the regulation of whaling. It is “composed of one member from
                      each Contracting Government”. The adoption by the Commission of
                      amendments to the Schedule requires a three‑fourths majority of votes
                      cast (Art. III, para. 2). An amendment becomes binding on a State party
                      unless it presents an objection, in which case the amendment does not
                      become effective in respect of that State until the objection is withdrawn.
                      The Commission has amended the Schedule many times. The functions
                      conferred on the Commission have made the Convention an evolving
                      instrument.

                     25

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                     248 	            whaling in the antarctic (judgment)

                       Among the objects of possible amendments, Article V, paragraph 1, of
                     the Convention lists
                          “fixing (a) protected and unprotected species . . . (c) open and closed
                          waters, including the designation of sanctuary areas . . . (e) time,
                          methods, and intensity of whaling (including the maximum catch of
                          whales to be taken in any one season), (f) types and specifications of
                          gear and apparatus and appliances which may be used”.

                        Amendments to the Schedule “shall be such as are necessary to carry
                     out the objectives and purposes of this Convention and to provide for the
                     conservation, development, and optimum utilization of the whale
                     resources” and “shall be based on scientific findings” (Art. V, para. 2).
                        46. Article VI of the Convention states that “[t]he Commission may
                     from time to time make recommendations to any or all Contracting Gov-
                     ernments on any matters which relate to whales or whaling and to the
                     objectives and purposes of this Convention”. These recommendations,
                     which take the form of resolutions, are not binding. However, when they
                     are adopted by consensus or by a unanimous vote, they may be relevant
                     for the interpretation of the Convention or its Schedule.

                        47. In 1950, the Commission established a Scientific Committee (here-
                     inafter the “Scientific Committee” or “Committee”). The Committee is
                     composed primarily of scientists nominated by the States parties. How-
                     ever, advisers from intergovernmental organizations and scientists who
                     have not been nominated by States parties may be invited to participate
                     in a non‑voting capacity.
                        The Scientific Committee assists the Commission in discharging its func-
                     tions, in particular those relating to “studies and investigations relating to
                     whales and whaling” (Article IV of the Convention). It analyses informa-
                     tion available to States parties “with respect to whales and whaling” and
                     submitted by them in compliance with their obligations under Article VIII,
                     paragraph 3, of the Convention. It contributes to making “scientific find-
                     ings” on the basis of which amendments to the Schedule may be adopted
                     by the Commission (Art. V, para. 2 (b)). According to paragraph 30 of
                     the Schedule, adopted in 1979, the Scientific Committee reviews and com-
                     ments on special permits before they are issued by States parties to their
                     nationals for purposes of scientific research under Article VIII, para-
                     graph 1, of the Convention. The Scientific Committee has not been
                     empowered to make any binding assessment in this regard. It communi-
                     cates to the Commission its views on programmes for scientific research,
                     including the views of individual members, in the form of reports or rec-
                     ommendations. However, when there is a division of opinion, the Com-
                     mittee generally refrains from formally adopting the majority view.
                        Since the mid‑1980s, the Scientific Committee has conducted its review
                     of special permits on the basis of “Guidelines” issued or endorsed by the

                     26

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                     249 	           whaling in the antarctic (judgment)

                     Commission. At the time that JARPA II was proposed in 2005, the appli-
                     cable Guidelines had been collected in a document entitled “Annex Y :
                     Guidelines for the Review of Scientific Permit Proposals” (hereinafter
                     “Annex Y”). The current Guidelines, which were elaborated by the Scien-
                     tific Committee and endorsed by the Commission in 2008 (and then fur-
                     ther revised in 2012), are set forth in a document entitled “Annex P :
                     Process for the Review of Special Permit Proposals and Research Results
                     from Existing and Completed Permits” (hereinafter “Annex P”).

                     B. Claims by Australia and response by Japan
                         48. Australia alleges that JARPA II is not a programme for purposes
                      of scientific research within the meaning of Article VIII of the Conven-
                     tion. In Australia’s view, it follows from this that Japan has breached and
                     continues to breach certain of its obligations under the Schedule to the
                     ICRW. Australia’s claims concern compliance with the following sub-
                     stantive obligations : (1) the obligation to respect the moratorium setting
                     zero catch limits for the killing of whales from all stocks for commercial
                     purposes (para. 10 (e)) ; (2) the obligation not to undertake commercial
                     whaling of fin whales in the Southern Ocean Sanctuary (para. 7 (b)) ;
                     and (3) the obligation to observe the moratorium on the taking, killing or
                     treating of whales, except minke whales, by factory ships or whale
                     catchers attached to factory ships (para. 10 (d)). Moreover, according
                      to Australia’s final submissions, when authorizing JARPA II, Japan
                     also failed to comply with the procedural requirements set out in para-
                      graph 30 of the Schedule for proposed scientific permits.
                         49. Japan contests all the alleged breaches. With regard to the substan-
                      tive obligations under the Schedule, Japan argues that none of the obliga-
                      tions invoked by Australia applies to JARPA II, because this programme
                      has been undertaken for purposes of scientific research and is therefore
                      covered by the exemption provided for in Article VIII, paragraph 1, of
                      the Convention. Japan also contends that there has been no breach of the
                      procedural requirements stated in paragraph 30 of the Schedule.
                         50. The issues concerning the interpretation and application of Arti-
                      cle VIII of the Convention are central to the present case and will be
                      examined first.

                          2. Interpretation of Article VIII, Paragraph 1, of the Convention
                     A. The function of Article VIII
                       51. Article VIII, paragraph 1, of the Convention reads as follows :

                             “Notwithstanding anything contained in this Convention any
                          Contracting Government may grant to any of its nationals a special

                     27

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                     250 	           whaling in the antarctic (judgment)

                          permit authorizing that national to kill, take and treat whales for
                          purposes of scientific research subject to such restrictions as to num-
                          ber and subject to such other conditions as the Contracting Govern-
                          ment thinks fit, and the killing, taking, and treating of whales in
                          accordance with the provisions of this Article shall be exempt from
                          the operation of this Convention. Each Contracting Government
                          shall report at once to the Commission all such authorizations which
                          it has granted. Each Contracting Government may at any time revoke
                          any such special permit which it has granted.”

                        52. Japan initially argued that “special permit whaling under Arti-
                     cle VIII is entirely outside the scope of the ICRW”. Article VIII, para-
                     graph 1, it contended, was to be regarded as “free‑standing” and would
                     have to be read in isolation from the other provisions of the Convention.
                     Japan later acknowledged that Article VIII “must . . . be interpreted and
                     applied consistently with the Convention’s other provisions”, but empha-
                     sized that a consistent reading would consider Article VIII, paragraph 1,
                     as providing an exemption from the Convention.

                        53. According to Australia, Article VIII needs to be read in the context
                     of the other provisions of the Convention, to which it provides a limited
                     exception. In particular, Australia maintained that conservation measures
                     adopted in pursuance of the objectives of the Convention, “including the
                     moratorium and the Sanctuary”, are relevant also for whaling for scien-
                     tific purposes, given that the reliance on Article VIII, paragraph 1, cannot
                     have the effect of undermining the effectiveness of the regulatory régime
                     as a whole.

                        54. New Zealand observed that the phrase “[N]otwithstanding any-
                     thing contained in this Convention”, which opens paragraph 1 of Arti-
                     cle VIII, “provide[s] a limited discretion for Contracting Governments to
                     issue special permits for the specific articulated purpose of scientific
                     research”. It “do[es] not constitute a blanket exemption for special permit
                     whaling from all aspects of the Convention”. New Zealand pointed out
                     that the provision in paragraph 1 setting out that the taking of whales in
                     accordance with Article VIII is “exempt from the operation of this Con-
                     vention” “would have been unnecessary if the opening words of the para-
                     graph, ‘notwithstanding anything in the Convention’, were intended to
                     cover all aspects of Special Permit whaling”.

                        55. The Court notes that Article VIII is an integral part of the Conven-
                     tion. It therefore has to be interpreted in light of the object and purpose
                     of the Convention and taking into account other provisions of the Con-

                     28

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                     251 	           whaling in the antarctic (judgment)

                     vention, including the Schedule. However, since Article VIII, paragraph 1,
                     specifies that “the killing, taking, and treating of whales in accordance
                     with the provisions of this Article shall be exempt from the operation of
                     this Convention”, whaling conducted under a special permit which meets
                     the conditions of Article VIII is not subject to the obligations under the
                     Schedule concerning the moratorium on the catching of whales for com-
                     mercial purposes, the prohibition of commercial whaling in the Southern
                     Ocean Sanctuary and the moratorium relating to factory ships.

                     B. The relationship between Article VIII and the object and purpose of the
                         Convention
                        56. The Preamble of the ICRW indicates that the Convention pursues
                     the purpose of ensuring the conservation of all species of whales while
                     allowing for their sustainable exploitation. Thus, the first preambular
                     paragraph recognizes “the interest of the nations of the world in safe-
                     guarding for future generations the great natural resources represented by
                     the whale stocks”. In the same vein, the second paragraph of the Pre
                     amble expresses the desire “to protect all species of whales from further
                     overfishing”, and the fifth paragraph stresses the need “to give an interval
                     for recovery to certain species now depleted in numbers”. However, the
                     Preamble also refers to the exploitation of whales, noting in the third
                     paragraph that “increases in the size of whale stocks will permit increases
                     in the number of whales which may be captured without endangering
                     these natural resources”, and adding in the fourth paragraph that “it is
                     in the common interest to achieve the optimum level of whale stocks as
                     rapidly as possible without causing widespread economic and nutritional
                     distress” and in the fifth that “whaling operations should be confined to
                     those species best able to sustain exploitation”. The objectives of the
                     ICRW are further indicated in the final paragraph of the Preamble, which
                     states that the Contracting Parties “decided to conclude a convention to
                     provide for the proper conservation of whale stocks and thus make pos-
                     sible the orderly development of the whaling industry”. Amendments to
                     the Schedule and recommendations by the IWC may put an emphasis on
                     one or the other objective pursued by the Convention, but cannot alter its
                     object and purpose.

                        57. In order to buttress their arguments concerning the interpretation
                     of Article VIII, paragraph 1, Australia and Japan have respectively
                     emphasized conservation and sustainable exploitation as the object and
                     purpose of the Convention in the light of which the provision should be
                     interpreted. According to Australia, Article VIII, paragraph 1, should be
                     interpreted restrictively because it allows the taking of whales, thus pro-
                     viding an exception to the general rules of the Convention which give

                     29

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                     252 	           whaling in the antarctic (judgment)

                     effect to its object and purpose of conservation. New Zealand also calls
                     for “a restrictive rather than an expansive interpretation of the conditions
                     in which a Contracting Government may issue a Special Permit under
                     Article VIII”, in order not to undermine “the system of collective regula-
                     tion under the Convention”. This approach is contested by Japan, which
                     argues in particular that the power to authorize the taking of whales for
                     purposes of scientific research should be viewed in the context of the free-
                     dom to engage in whaling enjoyed by States under customary interna-
                     tional law.

                        58. Taking into account the Preamble and other relevant provisions of
                     the Convention referred to above, the Court observes that neither a
                     restrictive nor an expansive interpretation of Article VIII is justified. The
                     Court notes that programmes for purposes of scientific research should
                     foster scientific knowledge ; they may pursue an aim other than either
                     conservation or sustainable exploitation of whale stocks. This is also
                     reflected in the Guidelines issued by the IWC for the review of scientific
                     permit proposals by the Scientific Committee. In particular, the Guide-
                     lines initially applicable to JARPA II, Annex Y, referred not only to pro-
                     grammes that “contribute information essential for rational management
                     of the stock” or those that are relevant for “conduct[ing] the comprehen-
                     sive assessment” of the moratorium on commercial whaling, but also
                     those responding to “other critically important research needs”. The cur-
                     rent Guidelines, Annex P, list three broad categories of objectives. Besides
                     programmes aimed at “improv[ing] the conservation and management of
                     whale stocks”, they envisage programmes which have as an objective to
                     “improve the conservation and management of other living marine
                     resources or the ecosystem of which the whale stocks are an integral part”
                     and those directed at “test[ing] hypotheses not directly related to the
                     management of living marine resources”.

                     C. The issuance of special permits
                        59. Japan notes that, according to Article VIII, paragraph 1, the State
                     of nationality of the person or entity requesting a special permit for pur-
                     poses of scientific research is the only State that is competent under the
                     Convention to issue the permit. According to Japan, that State is in the
                     best position to evaluate a programme intended for purposes of scientific
                     research submitted by one of its nationals. In this regard it enjoys discre-
                     tion, which could be defined as a “margin of appreciation”. Japan argues
                     that this discretion is emphasized by the part of the paragraph which
                     specifies that the State of nationality may grant a permit “subject to such
                     restrictions as to number and subject to such other conditions as the Con-
                     tracting Government thinks fit”.
                        60. According to Australia, while the State of nationality of the
                     requesting entity has been given the power to authorize whaling for pur-

                     30

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                     253 	           whaling in the antarctic (judgment)

                     poses of scientific research under Article VIII, this does not imply that the
                     authorizing State has the discretion to determine whether a special permit
                     for the killing, taking and treating of whales falls within the scope of
                     Article VIII, paragraph 1. The requirements for granting a special permit
                     set out in the Convention provide a standard of an objective nature to
                     which the State of nationality has to conform. New Zealand also con
                     siders that Article VIII states “an objective requirement”, not “something
                     to be determined by the granting Contracting Government”.

                       61. The Court considers that Article VIII gives discretion to a State
                     party to the ICRW to reject the request for a special permit or to specify
                     the conditions under which a permit will be granted. However, whether
                     the killing, taking and treating of whales pursuant to a requested special
                     permit is for purposes of scientific research cannot depend simply on that
                     State’s perception.

                     D. The standard of review
                       62. The Court now turns to the standard that it will apply in reviewing
                     the grant of a special permit authorizing the killing, taking and treating of
                     whales on the basis of Article VIII, paragraph 1, of the Convention.

                        63. Australia maintains that the task before the Court in the present
                     case is to determine whether Japan’s actions are consistent with the
                     ICRW and the decisions taken under it. According to Australia, the
                     Court’s power of review should not be limited to scrutiny for good faith,
                     with a strong presumption in favour of the authorizing State, as this
                     would render the multilateral régime for the collective management of a
                     common resource established by the ICRW ineffective. Australia urges
                     the Court to have regard to objective elements in evaluating whether a
                     special permit has been granted for purposes of scientific research, refer-
                     ring in particular to the “design and implementation of the whaling pro-
                     gramme, as well as any results obtained”.

                        64. New Zealand maintains that the interpretation and application of
                     Article VIII entail the “simple question of compliance” by Contracting
                     Governments with their treaty obligations, a question which is to be
                     decided by the Court. New Zealand also emphasizes objective elements,
                     stating that the question whether a programme is for purposes of scien-
                     tific research can be evaluated with reference to its “methodology, design
                     and characteristics”.
                        65. Japan accepts that the Court may review the determination by a
                     State party to the ICRW that the whaling for which a special permit has
                     been granted is “for purposes of scientific research”. In the course of the
                     written and oral proceedings, Japan emphasized that the Court is limited,
                     when exercising its power of review, to ascertaining whether the determi-

                     31

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                     254 	           whaling in the antarctic (judgment)

                     nation was “arbitrary or capricious”, “manifestly unreasonable” or made
                     in bad faith. Japan also stressed that matters of scientific policy cannot be
                     properly appraised by the Court. It added that the role of the Court
                     therefore is “to secure the integrity of the process by which the decision is
                     made, [but] not to review the decision itself”.

                        66. Near the close of the oral proceedings, however, Japan refined
                     its position regarding the standard of review to be applied in this case as
                     follows :
                          “Japan agrees with Australia and New Zealand in regarding the test
                          as being whether a State’s decision is objectively reasonable, or ‘sup-
                          ported by coherent reasoning and respectable scientific evidence
                          and . . ., in this sense, objectively justifiable’”.

                       67. When reviewing the grant of a special permit authorizing the kill-
                     ing, taking and treating of whales, the Court will assess, first, whether the
                     programme under which these activities occur involves scientific research.
                     Secondly, the Court will consider if the killing, taking and treating of
                     whales is “for purposes of” scientific research by examining whether, in
                     the use of lethal methods, the programme’s design and implementation
                     are reasonable in relation to achieving its stated objectives. This standard
                     of review is an objective one. Relevant elements of a programme’s design
                     and implementation are set forth below (see paragraph 88).

                        68. In this regard, the Court notes that the dispute before it arises from
                     a decision by a State party to the ICRW to grant special permits under
                     Article VIII of that treaty. Inherent in such a decision is the determina-
                     tion by the State party that the programme’s use of lethal methods is for
                     purposes of scientific research. It follows that the Court will look to the
                     authorizing State, which has granted special permits, to explain the objec-
                     tive basis for its determination.

                        69. The Court observes that, in applying the above standard of review,
                     it is not called upon to resolve matters of scientific or whaling policy. The
                     Court is aware that members of the international community hold diver-
                     gent views about the appropriate policy towards whales and whaling, but
                     it is not for the Court to settle these differences. The Court’s task is only
                     to ascertain whether the special permits granted in relation to JARPA II
                     fall within the scope of Article VIII, paragraph 1, of the ICRW.

                     E. Meaning of the phrase “for purposes of scientific research”
                       70. The Parties address two closely related aspects of the interpretation
                     of Article VIII — the meaning of the terms “scientific research” and “for

                     32

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                     255 	           whaling in the antarctic (judgment)

                     purposes of” in the phrase “for purposes of scientific research”. Australia
                     analysed the meaning of these terms separately and observed that these
                     two elements are cumulative. Japan did not contest this approach to the
                     analysis of the provision.
                       71. In the view of the Court, the two elements of the phrase “for pur-
                     poses of scientific research” are cumulative. As a result, even if a whaling
                     programme involves scientific research, the killing, taking and treating of
                     whales pursuant to such a programme does not fall within Article VIII
                     unless these activities are “for purposes of” scientific research.

                        72. The Court first considers the arguments of the Parties and the
                     intervening State regarding the meaning of the term “scientific research”
                     and then turns to their arguments regarding the meaning of the term “for
                     purposes of” in the phrase “for purposes of scientific research”.
                       (a) The term “scientific research”
                        73. At the outset, the Court notes that the term “scientific research” is
                     not defined in the Convention.
                        74. Australia, relying primarily on the views of one of the scientific
                     experts that it called, Mr. Mangel, maintains that scientific research (in
                     the context of the Convention) has four essential characteristics : defined
                     and achievable objectives (questions or hypotheses) that aim to contrib-
                     ute to knowledge important to the conservation and management of
                     stocks ; “appropriate methods”, including the use of lethal methods only
                     where the objectives of the research cannot be achieved by any other
                     means ; peer review ; and the avoidance of adverse effects on stock. In
                     support of these criteria, Australia also draws on resolutions of the Com-
                     mission and the Guidelines related to the review of special permits by the
                     Scientific Committee (see paragraph 47 above).

                          75. Japan does not offer an alternative interpretation of the term
                     “scientific research”, and stresses that the views of an expert cannot
                      determine the interpretation of a treaty provision. As a matter of scien-
                       tific opinion, the expert called by Japan, Mr. Walløe, agreed in cer-
                       tain respects with the criteria advanced by Mr. Mangel, while differing on
                       certain important details. Japan disputes the weight that Australia assigns
                       to resolutions of the Commission that were adopted without Japan’s sup-
                       port, and notes that resolutions are recommendatory in nature.

                       76. The Court makes the following observations on the criteria
                     advanced by Australia with regard to the meaning of the term “scientific
                     research”.
                       77. As to the question whether a testable or defined hypothesis is
                     essential, the Court observes that the experts called by both Parties agreed
                     that scientific research should proceed on the basis of particular ques-

                     33

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                     256 	           whaling in the antarctic (judgment)

                     tions, which could take the form of a hypothesis, although they disagreed
                     about the level of specificity required of such a hypothesis. In short, the
                     opinions of the experts reveal some degree of agreement, albeit with
                     important nuances, regarding the role of hypotheses in scientific research
                     generally.

                        78. As to the use of lethal methods, Australia asserts that Article VIII,
                     paragraph 1, authorizes the granting of special permits to kill, take and
                     treat whales only when non‑lethal methods are not available, invoking
                     the views of the experts it called, as well as certain IWC resolutions and
                     Guidelines. For example, Australia refers to resolution 1986‑2 (which
                     recommends that when considering a proposed special permit, a State party
                      should take into account whether “the objectives of the research are not
                      practically and scientifically feasible through non‑lethal research tech-
                      niques”) and to Annex P (which provides that special permit proposals
                      should assess why non‑lethal methods or analyses of existing data “have
                      been considered to be insufficient”). Both of these instruments were
                      approved by consensus. Australia also points to resolution 1995‑9, which
                      was not adopted by consensus, and which recommends that the killing of
                      whales “should only be permitted in exceptional circumstances where the
                      questions address critically important issues which cannot be answered by
                      the analysis of existing data and/or use of non‑lethal research techniques”.

                        79. Australia claims that IWC resolutions must inform the Court’s
                     interpretation of Article VIII because they comprise “subsequent agree-
                     ment between the parties regarding the interpretation of the treaty” and
                     “subsequent practice in the application of the treaty which establishes the
                     agreement of the parties regarding its interpretation”, within the meaning
                     of subparagraphs (a) and (b), respectively, of paragraph 3 of Article 31
                     of the Vienna Convention on the Law of Treaties.

                         80. Japan disagrees with the assertion that special permits authorizing
                     lethal methods may be issued under Article VIII only if non‑lethal
                     methods are not available, calling attention to the fact that Article VIII
                      authorizes the granting of permits for the killing of whales and thus
                      expressly contemplates lethal methods. Japan states that it does not use
                      lethal methods “more than it considers necessary” in conducting scientific
                      research, but notes that this restraint results not from a legal limitation
                      found in the ICRW, but rather from “reasons of scientific policy”. Japan
                      notes that the resolutions cited by Australia were adopted pursuant to the
                      Commission’s power to make recommendations. Japan accepts that it has
                      a duty to give due consideration to these recommendations, but empha-
                      sizes that they are not binding.

                     34

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                     257 	            whaling in the antarctic (judgment)

                        81. New Zealand asserts that special permits must be granted in a
                     “reasonable and precautionary way”, which requires that “whales may be
                     killed only where that is necessary for scientific research and it is not pos-
                     sible to achieve the equivalent objectives of that research by non‑lethal
                     means”. Like Australia, New Zealand refers to IWC resolutions and
                     Guidelines to support this assertion.
                        82. The Court observes that, as a matter of scientific opinion, the
                     experts called by the Parties agreed that lethal methods can have a place
                     in scientific research, while not necessarily agreeing on the conditions for
                     their use. Their conclusions as scientists, however, must be distinguished
                     from the interpretation of the Convention, which is the task of this Court.

                        83. Article VIII expressly contemplates the use of lethal methods, and
                     the Court is of the view that Australia and New Zealand overstate the
                     legal significance of the recommendatory resolutions and Guidelines on
                     which they rely. First, many IWC resolutions were adopted without the
                     support of all States parties to the Convention and, in particular, without
                     the concurrence of Japan. Thus, such instruments cannot be regarded
                     as subsequent agreement to an interpretation of Article VIII, nor as sub-
                     sequent practice establishing an agreement of the parties regarding the
                     interpretation of the treaty within the meaning of subparagraphs (a) and
                     (b), respectively, of paragraph (3) of Article 31 of the Vienna Convention
                     on the Law of Treaties.
                        Secondly, as a matter of substance, the relevant resolutions and Guide-
                     lines that have been approved by consensus call upon States parties to
                     take into account whether research objectives can practically and scien-
                     tifically be achieved by using non‑lethal research methods, but they do
                     not establish a requirement that lethal methods be used only when other
                     methods are not available.
                        The Court however observes that the States parties to the ICRW have
                     a duty to co‑operate with the IWC and the Scientific Committee and thus
                     should give due regard to recommendations calling for an assessment of
                     the feasibility of non‑lethal alternatives. The Court will return to this
                     point when it considers the Parties’ arguments regarding JARPA II (see
                     paragraph 137).
                        84. As to the criterion of peer review advanced by Australia, even if
                     peer review of proposals and results is common practice in the scientific
                     community, it does not follow that a programme can be said to involve
                     scientific research only if the proposals and the results are subjected to
                     peer review. The Convention takes a different approach (while certainly
                     not precluding peer review). Paragraph 30 of the Schedule requires prior
                     review of proposed permits by the Scientific Committee and the current
                     Guidelines (Annex P) also contemplate Scientific Committee review of
                     ongoing and completed programmes.

                     35

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                     258 	            whaling in the antarctic (judgment)

                        85. Regarding the fourth criterion advanced by Australia, Japan and
                     New Zealand agree with Australia that scientific research must avoid an
                     adverse effect on whale stocks.
                        Thus, the Parties and the intervening State appear to be in agreement
                     in respect of this criterion. In the particular context of JARPA II, how-
                     ever, Australia does not maintain that meeting the target sample sizes
                     would have an adverse effect on the relevant stocks, so this criterion does
                     not appear to be of particular significance in this case.
                        86. Taking into account these observations, the Court is not persuaded
                     that activities must satisfy the four criteria advanced by Australia in order
                     to constitute “scientific research” in the context of Article VIII. As for-
                     mulated by Australia, these criteria appear largely to reflect what one of
                     the experts that it called regards as well‑conceived scientific research,
                     rather than serving as an interpretation of the term as used in the Con-
                     vention. Nor does the Court consider it necessary to devise alternative
                     criteria or to offer a general definition of “scientific research”.

                       (b) The meaning of the term “for purposes of” in Article VIII, para-
                            graph 1
                        87. The Court turns next to the second element of the phrase “for pur-
                     poses of scientific research”, namely the meaning of the term “for pur-
                     poses of”.
                        88. The stated research objectives of a programme are the foundation
                     of a programme’s design, but the Court need not pass judgment on the
                     scientific merit or importance of those objectives in order to assess the pur
                     pose of the killing of whales under such a programme. Nor is it for the
                     Court to decide whether the design and implementation of a programme
                     are the best possible means of achieving its stated objectives.

                        In order to ascertain whether a programme’s use of lethal methods is
                     for purposes of scientific research, the Court will consider whether the
                     elements of a programme’s design and implementation are reasonable in
                     relation to its stated scientific objectives (see paragraph 67 above). As
                     shown by the arguments of the Parties, such elements may include : deci-
                     sions regarding the use of lethal methods ; the scale of the programme’s
                     use of lethal sampling ; the methodology used to select sample sizes ; a
                     comparison of the target sample sizes and the actual take ; the time frame
                     associated with a programme ; the programme’s scientific output ; and the
                     degree to which a programme co‑ordinates its activities with related
                     research projects (see paragraphs 129‑132 ; 149 ; 158‑159 ; 203‑205 ; 214-
                     222 below).

                       89. The Parties agree that the design and implementation of a pro-
                     gramme for purposes of scientific research differ in key respects from

                     36

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                     259 	           whaling in the antarctic (judgment)

                     commercial whaling. The evidence regarding the programme’s design
                     and implementation must be considered in light of this distinction. For
                     example, according to Japan, in commercial whaling, only species of high
                     commercial value are taken and larger animals make up the majority of
                     the catch, whereas in scientific whaling “species of less or no commercial
                     value” may be targeted and individual animals are taken based on ran-
                     dom sampling procedures.

                       90. Australia raises two features of a programme that, in its view, bear
                     on the distinction between the grant of a special permit that authorizes
                     whaling “for purposes of” scientific research and whaling activities that
                     do not fit within Article VIII and thus, in Australia’s view, violate para-
                     graphs 7 (b), 10 (d) and 10 (e) of the Schedule.

                       91. First, Australia acknowledges that Article VIII, paragraph 2, of
                     the Convention allows the sale of whale meat that is the by‑product of
                     whaling for purposes of scientific research. That provision states :

                             “Any whales taken under these special permits shall so far as prac-
                          ticable be processed and the proceeds shall be dealt with in accordance
                          with directions issued by the Government by which the permit was
                          granted.”
                     However, Australia considers that the quantity of whale meat generated
                     in the course of a programme for which a permit has been granted under
                     Article VIII, paragraph 1, and the sale of that meat, can cast doubt on
                     whether the killing, taking and treating of whales is for purposes of scien-
                     tific research.
                        92. Japan states in response that the sale of meat as a means to fund
                     research is allowed by Article VIII, paragraph 2, and is commonplace in
                     respect of fisheries research.

                        93. On this point, New Zealand asserts that Article VIII, paragraph 2,
                     can be read to permit the sale of whale meat, but that such sale is not
                     required.
                        94. As the Parties and the intervening State accept, Article VIII, para-
                     graph 2, permits the processing and sale of whale meat incidental to the
                     killing of whales pursuant to the grant of a special permit under Arti-
                     cle VIII, paragraph 1.
                        In the Court’s view, the fact that a programme involves the sale of
                     whale meat and the use of proceeds to fund research is not sufficient,
                     taken alone, to cause a special permit to fall outside Article VIII. Other
                     elements would have to be examined, such as the scale of a programme’s
                     use of lethal sampling, which might suggest that the whaling is for pur-
                     poses other than scientific research. In particular, a State party may not,
                     in order to fund the research for which a special permit has been granted,

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                     use lethal sampling on a greater scale than is otherwise reasonable in rela-
                     tion to achieving the programme’s stated objectives.

                        95. Secondly, Australia asserts that a State’s pursuit of goals that
                     extend beyond scientific objectives would demonstrate that a special per-
                     mit granted in respect of such a programme does not fall within Arti-
                     cle VIII. In Australia’s view, for example, the pursuit of policy goals such
                     as providing employment or maintaining a whaling infrastructure would
                     indicate that the killing of whales is not for purposes of scientific research.

                        96. Japan accepts that “special permits may be granted only for whal-
                     ing that has scientific purposes, and not for commercial purposes”. Japan
                     points to the fact that the Schedule provision establishing the moratorium
                     on commercial whaling, paragraph 10 (e), calls for the “best scientific
                     advice” in order for the moratorium to be reviewed and potentially lifted.
                     Japan further asserts that a State party is within its rights to conduct a
                     programme of scientific research that aims to advance its objective of
                     resuming commercial whaling on a sustainable basis.

                        97. The Court observes that a State often seeks to accomplish more
                     than one goal when it pursues a particular policy. Moreover, an objective
                     test of whether a programme is for purposes of scientific research does
                     not turn on the intentions of individual government officials, but rather
                     on whether the design and implementation of a programme are reason-
                     able in relation to achieving the stated research objectives. Accordingly,
                     the Court considers that whether particular government officials may
                     have motivations that go beyond scientific research does not preclude a
                     conclusion that a programme is for purposes of scientific research within
                     the meaning of Article VIII. At the same time, such motivations cannot
                     justify the granting of a special permit for a programme that uses lethal
                     sampling on a larger scale than is reasonable in relation to achieving the
                     programme’s stated research objectives. The research objectives alone
                     must be sufficient to justify the programme as designed and implemented.

                              3. JARPA II in Light of Article VIII of the Convention
                        98. The Court will now apply the approach set forth in the preceding
                     section to enquire into whether, based on the evidence, the design and
                     implementation of JARPA II are reasonable in relation to achieving its
                     stated objectives.
                        99. JARPA II was preceded by the Japanese Whale Research Program
                     under Special Permit in the Antarctic (JARPA). The legality of JARPA is
                     not at issue in this case. In the course of presenting their views about
                     JARPA II, however, the Parties draw a variety of comparisons between
                     JARPA II and the predecessor programme. Therefore, the Court begins
                     with a description of JARPA.

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                     A. Description of the programmes
                       (a) JARPA
                        100. In 1982, the IWC amended the Schedule to adopt a moratorium
                     on commercial whaling. Japan made a timely objection to the amend-
                     ment, which it withdrew in 1986. Australia asserts that Japan withdrew
                     that objection under pressure from other countries, and, in particular, in
                     light of the prospect of trade sanctions being imposed against Japan by
                     the United States. Following withdrawal of the objection, the morat
                     orium entered into force for Japan after the 1986‑1987 whaling season.
                     Japan commenced JARPA in the next season. Like JARPA II, JARPA
                     was a programme for which Japan issued special permits pursuant to
                     Article VIII, paragraph 1, of the Convention.

                         101. Australia takes the position that JARPA was conceived in order
                     to continue commercial whaling under the “guise” of scientific research.
                     It points to various statements that Japanese authorities made after the
                     adoption of the commercial whaling moratorium. For example, in 1983 a
                     Japanese official stated that the Government’s goal in the face of the
                     adoption of the commercial whaling moratorium was “to ensure that our
                     whaling can continue in some form or another”. In 1984, a study group
                     commissioned by the Government of Japan recommended that Japan
                     pursue scientific whaling “in order to continue whaling in the Southern
                     Ocean”.
                         102. Japan rejects Australia’s characterization of the factors that led to
                     the establishment of JARPA and asserts that Australia has taken the
                     statements by Japanese authorities out of context. It explains that JARPA
                     was started following Japan’s acceptance of the commercial whaling
                     moratorium because “the justification for the moratorium was that data
                      on whale stocks was inadequate to manage commercial whaling properly”
                      and it was therefore “best to start the research program as soon as pos-
                      sible”.

                        103. JARPA commenced during the 1987‑1988 season and ran until
                     the 2004‑2005 season, after which it was followed immediately by
                     JARPA II in the 2005‑2006 season. Japan explains that JARPA was
                     launched “for the purpose of collecting scientific data to contribute to the
                     ‘review’ and ‘comprehensive assessment’” of the moratorium on commer-
                     cial whaling, as envisaged by paragraph 10 (e) of the Schedule. It was
                     designed to be an 18‑year research programme, “after which the necessity
                     for further research would be reviewed”.
                        104. The 1987 JARPA Research Plan described JARPA as, inter alia,
                     “a program for research on the southern hemisphere minke whale and for
                     preliminary research on the marine ecosystem in the Antarctic”. It was
                     “designed to estimate the stock size” of southern hemisphere minke

                     39

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                     262 	           whaling in the antarctic (judgment)

                     whales in order to provide a “scientific basis for resolving problems facing
                     the IWC” relating to “the divergent views on the moratorium”. To those
                     ends, it proposed annual lethal sample sizes of 825 Antarctic minke
                     whales and 50 sperm whales from two “management areas” in the South-
                     ern Ocean. Later, the proposal to sample sperm whales by lethal methods
                     was dropped from the programme and the sample size for Antarctic
                     minke whales was reduced to 300 for JARPA’s first seven seasons
                     (1987‑1988 to 1993‑1994). Japan explains that the decision to reduce the
                     sample size from 825 to 300 resulted in the extension of the research
                     period, which made it possible to obtain accurate results with smaller
                     sample sizes. Beginning in the 1995‑1996 season, the maximum annual
                     sample size for Antarctic minke whales was increased to 400, plus or
                     minus 10 per cent. More than 6,700 Antarctic minke whales were killed
                     over the course of JARPA’s 18‑year history.

                       105. In January 2005, during JARPA’s final season, Japan indepen-
                     dently convened a meeting, outside the auspices of the IWC, to review the
                     then‑available data and results from the programme. In December 2006,
                     the Scientific Committee held a “final review” workshop to review the
                     entirety of JARPA’s data and results and to assess the extent to which
                     JARPA had accomplished or made progress towards its stated objectives ;
                     several recommendations were made for the further study and analysis of
                     the data collected under JARPA. Japan submitted its Research Plan for
                     JARPA II to the IWC in March 2005, and launched JARPA II, in
                     November 2005, after the January 2005 meeting convened by Japan but
                     prior to the December 2006 final review of JARPA by the Scientific Com-
                     mittee.

                       106. Australia describes the “primary purpose” of JARPA as the esti-
                     mation of the natural mortality rate of Antarctic minke whales (i.e., the
                     chance that a whale will die from natural causes in any particular year).
                     Australia also maintains that Japan purported to be collecting biological
                     data that it viewed as relevant to the New Management Procedure (the
                     “NMP”) — the model in use by the Commission to regulate whaling
                     activity at the time of JARPA’s launch — but abandoned its initial
                     approach after five years. According to Australia, the goal to estimate
                     natural mortality was “practically unachievable” and the “irrelevance” of
                     JARPA was confirmed in 1994 when the Commission agreed to replace
                     the NMP with another management tool, the Revised Management Pro-
                     cedure (the “RMP”), which did not require the type of information that
                     JARPA obtained by lethal sampling.

                      107. The RMP requires a brief explanation. The Parties agree that the
                     RMP is a conservative and precautionary management tool and that it

                     40

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                     remains the applicable management procedure of the IWC, although its
                     implementation has not been completed. Australia maintains that the
                     RMP “overcomes the difficulties faced by the NMP” — the mechanism
                     that the Commission previously developed to set catch limits — because
                     it takes uncertainty in abundance estimates into account and “does not
                     rely on biological parameters that are difficult to estimate”. Japan dis-
                     putes this characterization of the RMP and argues that its implementa-
                     tion requires “a huge amount of scientific data” at each step. Thus, the
                     Parties disagree on whether data collected by JARPA and JARPA II con-
                     tribute to the RMP.

                        108. With regard to JARPA, Australia asserts that the Scientific Com-
                     mittee was unable to conclude at the final review workshop held in 2006
                     that any of JARPA’s stated objectives had been met, including an ade-
                     quately precise estimate of natural mortality rate. Japan maintains that
                     recommendations made in the course of JARPA’s final review led to fur-
                     ther analysis of the JARPA data and that in 2010 the Scientific Commit-
                     tee accepted an estimate of natural mortality rate based on those data.
                     Overall, the Parties disagree whether JARPA made a scientific contribu-
                     tion to the conservation and management of whales. The Court is not
                     called upon to address that disagreement.

                       (b) JARPA II
                        109. In March 2005, Japan submitted to the Scientific Committee a
                     document entitled “Plan for the Second Phase of the Japanese Whale
                     Research Program under Special Permit in the Antarctic (JARPA II) —
                     Monitoring of the Antarctic Ecosystem and Development of New Man-
                     agement Objectives for Whale Resources” (hereinafter the “JARPA II
                     Research Plan”). Following review of the JARPA II Research Plan by the
                     Scientific Committee, Japan granted the first set of annual special permits
                     for JARPA II in November 2005, after which JARPA II became opera-
                     tional. As was the case under JARPA, the special permits for JARPA II
                     are issued by Japan to the Institute of Cetacean Research, a foundation
                     established in 1987 as a “public‑benefit corporation” under Japan’s Civil
                     Code. The evidence indicates that the Institute of Cetacean Research has
                     historically been subsidized by Japan and that Japan exercises a super
                     visory role over the institute’s activities. Japan has granted special permits
                     to that institute for JARPA II for each season since 2005‑2006.

                        110. The JARPA II Research Plan describes key elements of the pro-
                     gramme’s design : the research objectives, research period and area,
                     research methods, sample sizes, and the expected effect on whale stocks.
                     As further discussed below, the programme contemplates the lethal sam-
                     pling of three whale species : Antarctic minke whales, fin whales and

                     41

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                     264 	           whaling in the antarctic (judgment)

                     humpback whales (see paragraph 123). This Judgment uses the terms
                     “Antarctic minke whales” and “minke whales” interchangeably.

                        111. Minke whales, fin whales and humpback whales are all baleen
                     whales, meaning they have no teeth ; baleen whales instead use baleen
                     plates in the mouth to filter their food from sea water. Antarctic minke
                     whales are among the smallest baleen whales : an average adult is between
                     10 and 11 metres long and weighs between 8 and 10 tons. The fin whale is
                     the second largest whale species (after the blue whale) : an average adult
                     is between 25 and 26 metres long and its body mass is between 60 and
                     80 tons. Humpback whales are larger than minke whales but smaller than
                     fin whales : adults are between 14 and 17 metres long.

                       112. The Court will now outline the key elements of JARPA II, as set
                     forth in the Research Plan and further explained by Japan in these pro-
                     ceedings.
                          (i) Research objectives
                        113. The JARPA II Research Plan identifies four research objectives :
                     (1) Monitoring of the Antarctic ecosystem ; (2) Modelling competition
                     among whale species and future management objectives ; (3) Elucidation
                     of temporal and spatial changes in stock structure ; and (4) Improving the
                     management procedure for Antarctic minke whale stocks.

                        114. Objective No. 1. The JARPA II Research Plan states that
                     JARPA II will monitor changes relating to whale abundance and bio-
                     logical parameters, prey density and abundance, and the effects of con-
                     taminants on cetaceans, and the cetaceans’ habitat, in three whale
                     species — Antarctic minke whales, humpback whales and fin whales —
                     and that “[t]he obtained data will be indicators of changes in the Antarc-
                     tic ecosystem”. The Research Plan stresses the importance of detecting
                     changes in the whale populations and their habitat “as soon as possible”
                     in order “to predict their effects on the stocks, and to provide information
                     necessary for the development of appropriate management policies”. Spe-
                     cifically, JARPA II will monitor “changes in recruitment, pregnancy rate,
                     age at maturity and other biological parameters by sampling survey”,
                     while “abundance” will be monitored through “sighting surveys”.
                     JARPA II will also monitor prey consumption and changes in blubber
                     thickness over time, as well as contaminant accumulation and the effects
                     of toxins on cetaceans.

                        115. Objective No. 2. The second objective refers to “modelling compe-
                     tition among whale species and future management objectives”. The

                     42

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                     265 	            whaling in the antarctic (judgment)

                     JARPA II Research Plan states that “[t]here is a strong indication of
                     competition among whale species in the research area” and that JARPA II
                     therefore seeks to explore “hypotheses related to this competition”. The
                     Research Plan refers to the “krill surplus hypothesis”. As presented to the
                     Court, this hypothesis refers to two interrelated ideas : first, that the pre-
                     vious overhunting of certain whale species (including fin and humpback
                     whales) created a surplus of krill (a shared food source) for other preda-
                     tors, including the smaller minke whale, which led to an increase in the
                     abundance of that species ; and, secondly, that a subsequent recovery in
                     the humpback and fin whale populations (since the commercial catch of
                     those species was banned in 1963 and 1976, respectively) has resulted in
                     increased competition among these larger whales and minke whales for
                     krill. The JARPA II Research Plan suggests that Antarctic minke whale
                     stocks may decrease as a result of current conditions.

                       116. Japan explains that “JARPA II . . . does not purport to verify the
                     validity of the krill surplus hypothesis” but instead seeks “to incorporate
                     data on other animals/fish that prey on krill in order to develop a ‘model
                     of competition among whale species’” that may help to explain changes
                     in the abundance levels of different whale species. In Japan’s view, the
                     “krill surplus hypothesis” is just one of several ideas (in addition to, for
                     example, the effects of climate change) that JARPA II is designed to
                     explore in connection with its construction of “an ecosystem model” for
                     the Antarctic. The JARPA II Research Plan further explains that such a
                     model may contribute to establishing “new management objectives” for
                     the IWC, such as finding ways to accelerate the recovery of blue and fin
                     whales, and will examine “the possible effects of the resumption of com-
                     mercial whaling on the relative numbers of the various species and stocks”.
                     Mr. Mangel, the expert called by Australia, referred to the “krill surplus
                     hypothesis” as the “only clearly identifiable hypothesis” in JARPA II.

                       117. Objective No. 3. The third objective concerns stock structure.
                     With regard to fin whales, the programme’s objective is to compare cur-
                     rent stock structure to historic information on that species. With regard
                     to humpback whales and Antarctic minke whales, the plan describes a
                     need “to investigate shifts in stock boundaries” on a yearly basis.

                        118. Objective No. 4. The fourth objective concerns the management
                     procedure for Antarctic minke whale stocks and builds upon the other
                     three objectives. The JARPA II Research Plan states that the first objec-
                     tive will provide information on biological parameters “necessary for
                     managing the stocks more efficiently under a revised RMP”, the second

                     43

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                     266 	           whaling in the antarctic (judgment)

                     objective “will lead to examining a multi‑species management model
                     for the future”, and the third “will supply information for establishing
                     management areas in the Antarctic Ocean”. According to the Research
                     Plan, the information relating to the “effects arising from inter‑species
                     relationships among the whale species” could demonstrate that the deter-
                     mination of a catch quota for Antarctic minke whales under the RMP
                     would be too low, perhaps even set unnecessarily at zero. As noted above
                     (see paragraph 107), the Parties disagree about the type of information
                     necessary to implement the RMP.

                          (ii) Research period and area
                        119. Japan explains that JARPA II is “a long‑term research programme
                     and has no specified termination date because its primary objective (i.e.,
                     monitoring the Antarctic ecosystem) requires a continuing programme of
                     research”. JARPA II is structured in six‑year phases. After each six‑year
                     phase, a review will be held to consider revisions to the programme. The
                     first such six‑year phase was completed after the 2010‑2011 season. Fol-
                     lowing some delay, the first periodic review of JARPA II by the Scientific
                     Committee is scheduled to take place in 2014.

                       120. The JARPA II Research Plan operates in an area that is located
                     within the Southern Ocean Sanctuary established in paragraph 7 (b) of
                     the Schedule to the Convention.

                          (iii) Research methods and sample size
                       121. The Research Plan indicates that JARPA II is designed to use a
                     mix of lethal and non‑lethal methods to pursue the research objectives, a
                     point that Japan also made in these proceedings.

                        122. Japan asserts that lethal sampling is “indispensable” to JARPA II’s
                     first two objectives, relating to ecosystem monitoring and multi‑species
                     competition modelling. The JARPA II Research Plan explains that the
                     third objective will rely on “genetic and biological markers” taken from
                     whales that have been lethally sampled in connection with the first two
                     objectives, as well as non‑lethal methods, namely biopsy sampling from
                     blue, fin and humpback whales.

                       123. The Research Plan provides that in each season the sample sizes
                     for fin and humpback whales will be 50 and the sample size for Antarctic
                     minke whales will be 850, plus or minus 10 per cent (i.e., a maximum of
                     935 per season). These target sample sizes are discussed in greater detail
                     below (see paragraphs 157‑198).
                       124. With regard to non‑lethal methods, the JARPA II Research Plan
                     describes the intended use of biopsy sampling and satellite tagging in
                     addition to whale sighting surveys. According to Japan, it makes exten-

                     44

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                     267 	           whaling in the antarctic (judgment)

                     sive use of non‑lethal methods to obtain data and information to the
                     extent practicable.
                        125. As to JARPA II’s operation, Japan explains that JARPA II ves-
                     sels follow “scientifically determined tracklines”, including in areas
                     “where the density of the target species is low”, to obtain a proper distri-
                     bution of samples and observations. Whales from the targeted species are
                     taken if they are encountered within 3 nautical miles of the predeter
                     mined trackline being followed by a JARPA II vessel. If a lone whale is
                     encountered, it will be taken ; if a school of whales is encountered, two
                     whales will be taken at random.

                          (iv) Effect on whale stocks
                        126. The JARPA II Research Plan sets out the bases for Japan’s con-
                     clusion that the lethal sample sizes described above are designed to avoid
                     having any adverse effect on the targeted whale stocks. The Research
                     Plan states that, based on current abundance estimates, the planned take
                     of each species is too small to have any negative effect. Japan also explains
                     that the JARPA II Research Plan used conservative estimates of Antarc-
                     tic minke whale abundance to assess the effects of the target sample size
                     for that species.

                     B. Whether the design and implementation of JARPA II are reasonable in
                         relation to achieving the programme’s stated research objectives
                        127. The Court observes that the JARPA II Research Plan describes
                     areas of inquiry that correspond to four research objectives and presents
                     a programme of activities that involves the systematic collection and
                     analysis of data by scientific personnel. The research objectives come
                     within the research categories identified by the Scientific Committee in
                     Annexes Y and P (see paragraph 58 above). Based on the information
                     before it, the Court thus finds that the JARPA II activities involving the
                     lethal sampling of whales can broadly be characterized as “scientific
                     research”. There is no need therefore, in the context of this case, to exam-
                     ine generally the concept of “scientific research”. Accordingly, the Court’s
                     examination of the evidence with respect to JARPA II will focus on
                     whether the killing, taking and treating of whales in pursuance of
                     JARPA II is for purposes of scientific research and thus may be author
                     ized by special permits granted under Article VIII, paragraph 1, of the
                     Convention. To this end and in light of the applicable standard of review
                     (see paragraph 67 above), the Court will examine whether the design and
                     implementation of JARPA II are reasonable in relation to achieving the
                     programme’s stated research objectives, taking into account the elements
                     identified above (see paragraph 88).

                     45

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                     268 	           whaling in the antarctic (judgment)

                       (a) Japan’s decisions regarding the use of lethal methods
                        128. Lethal methods are central to the design of JARPA II. However,
                     it should be noted that the Parties disagree as to the reasons for that.

                        129. Japan states that it does not use lethal methods more than it con-
                     siders necessary to meet research objectives and that lethal methods are
                     “indispensable” in JARPA II because the programme’s first two objec-
                     tives require data that can only realistically be obtained from internal
                     organs and stomach contents. Japan accepts that non‑lethal biopsies and
                     satellite tagging have been used for certain larger species of whales but
                     states that these methods are not practical for minke whales. Japan also
                     points out that, while certain relevant data may be obtainable by
                     non‑lethal means, such data would be of lesser quality or reliability, and,
                     in some cases, would involve “unrealistic” amounts of time and expense.

                        130. By contrast, Australia maintains that Japan has an “unbending
                     commitment to lethal take” and that “JARPA II is premised on the kill-
                     ing of whales”. According to Australia, JARPA II, like JARPA before it,
                     is “merely a guise” under which to continue commercial whaling. One
                     of the experts called by Australia, Mr. Mangel, stated that JARPA II
                     “simply assert[s] but [does] not demonstrate that lethal take is required”.
                     Australia further contends that a variety of non‑lethal research methods,
                     including satellite tagging, biopsy sampling and sighting surveys, are
                     more effective ways to gather information for whale research and that the
                     available technology has improved dramatically over the past quarter
                     century since JARPA was first launched.

                       131. As previously noted, Australia does not challenge the use of lethal
                     research methods per se. Australia accepts that there may be situations in
                     which research objectives can, in fact, require lethal methods, a view also
                     taken by the two experts that it called. However, it maintains that lethal
                     methods must be used in a research programme under Article VIII only
                     when “no other means are available” and the use of lethal methods is
                     thus “essential” to the stated objectives of a programme.

                       132. In support of their respective contentions about the use of lethal
                     methods in JARPA II, the Parties address three points : first, whether
                     non‑lethal methods are feasible as a means to obtain data relevant to the
                     JARPA II research objectives ; secondly, whether the data that JARPA II
                     collects through lethal methods are reliable or valuable ; and thirdly,
                     whether before launching JARPA II Japan considered the possibility of

                     46

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                     269 	           whaling in the antarctic (judgment)

                     making more extensive use of non‑lethal methods. The Court considers
                     these points in turn.

                       133. The Court notes that the Parties agree that non‑lethal methods
                     are not a feasible means to examine internal organs and stomach con-
                     tents. The Court therefore considers that the evidence shows that, at least
                     for some of the data sought by JARPA II researchers, non‑lethal methods
                     are not feasible.

                       134. Turning to the reliability and value of data collected in JARPA II,
                     the Court heard conflicting evidence. For example, the experts called by
                     Australia questioned the reliability of age data obtained from ear plugs
                     and the scientific value of the examination of stomach contents, given
                     pre‑existing knowledge of the diet of the target species. The expert called
                     by Japan disputed Australia’s contentions regarding the reliability and
                     value of data collected in JARPA II. This disagreement appears to be
                     about a matter of scientific opinion.

                       135. Taking into account the evidence indicating that non‑lethal alter-
                     natives are not feasible, at least for the collection of certain data, and
                     given that the value and reliability of such data are a matter of scientific
                     opinion, the Court finds no basis to conclude that the use of lethal meth-
                     ods is per se unreasonable in the context of JARPA II. Instead, it is neces-
                     sary to look more closely at the details of Japan’s decisions regarding the
                     use of lethal methods in JARPA II, discussed immediately below, and the
                     scale of their use in the programme, to which the Court will turn at para-
                     graph 145 below.

                        136. The Court next examines a third aspect of the use of lethal
                      ethods in JARPA II, which is the extent to which Japan has considered
                     m
                     whether the stated objectives of JARPA II could be achieved by making
                     greater use of non‑lethal methods, rather than by lethal sampling. The
                     Court recalls that the JARPA II Research Plan sets lethal sample sizes at
                     850 minke whales (plus or minus 10 per cent), 50 fin whales and 50 hump-
                     back whales (see paragraph 123 above), as compared to a lethal sample
                     size in JARPA of 400 minke whales (plus or minus 10 per cent) and no
                     whales of the other two species (see paragraph 104 above).

                        137. As previously indicated, the fact that a programme uses lethal
                     methods despite the availability of non‑lethal alternatives does not mean
                     that a special permit granted for such a programme necessarily falls out-
                     side Article VIII, paragraph 1 (see paragraph 83). There are, however,
                     three reasons why the JARPA II Research Plan should have included
                     some analysis of the feasibility of non‑lethal methods as a means of redu
                     cing the planned scale of lethal sampling in the new programme. First,

                     47

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                     270 	           whaling in the antarctic (judgment)

                     IWC resolutions and Guidelines call upon States parties to take into
                     account whether research objectives can be achieved using non‑lethal
                     methods. Japan has accepted that it is under an obligation to give due
                     regard to such recommendations. Secondly, as noted above (see para-
                     graphs 80 and 129), Japan states that, for reasons of scientific policy,
                     “[i]t does not . . . use lethal means more than it considers necessary” and
                     that non‑lethal alternatives are not practical or feasible in all cases. This
                     implies the undertaking of some type of analysis in order to ascertain that
                     lethal sampling is not being used to a greater extent than is necessary in
                     relation to achieving a programme’s stated research objectives. Thirdly,
                     the two experts called by Australia referred to significant advances in a
                     wide range of non‑lethal research techniques over the past 20 years and
                     described some of those developments and their potential application
                     with regard to JARPA II’s stated objectives. It stands to reason that a
                     research proposal that contemplates extensive lethal sampling would need
                     to analyse the potential applicability of these advances in relation to a
                     programme’s design.

                        138. The Court did not hear directly from Japanese scientists involved
                     in designing JARPA II. During the oral proceedings, however, a Member
                     of the Court asked Japan what analysis it had conducted of the feasibility
                     of non‑lethal methods prior to setting the sample sizes for each year of
                     JARPA II, and what bearing, if any, such analysis had had on the target
                     sample sizes. In response, Japan referred to two documents : (1) Annex H
                     to the 1997 interim review of JARPA by the Scientific Committee and
                     (2) an unpublished paper that Japan submitted to the Scientific Commit-
                     tee in 2007.

                        139. The first of these documents is not an analysis of JARPA II and
                     is not a study by Japan. It is a one‑page summary by the Scientific Com-
                     mittee of opposing views within the Committee on the need to use lethal
                     methods to collect information relating to stock structure. Japan stated
                     that this document “formed the basis of section IX of the 2005 JARPA II
                     Research Plan”. Section IX, entitled “Necessity of Lethal Methods”,
                     comprises two short paragraphs that contain no reference to feasibility
                     studies by Japan or to any consideration by Japan of developments in
                     non‑lethal research methods since the 1997 JARPA review. Japan identi-
                     fied no other analysis that was included in, or was contemporaneous with,
                     the JARPA II Research Plan.

                       140. The 2007 document to which Japan refers the Court discusses the
                     necessity of lethal methods in JARPA, not JARPA II. It states in sum-
                     mary format the authors’ conclusions as to why certain biological para
                     meters (listed in relation to particular JARPA objectives) required (or did

                     48

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                     271 	           whaling in the antarctic (judgment)

                     not require) lethal sampling, without any analysis and without reference
                     to the JARPA II objectives.

                        141. Thus, there is no evidence of studies of the feasibility or practica-
                     bility of non‑lethal methods, either in setting the JARPA II sample sizes
                     or in later years in which the programme has maintained the same sample
                     size targets. There is no evidence that Japan has examined whether it
                     would be feasible to combine a smaller lethal take (in particular, of minke
                     whales) and an increase in non‑lethal sampling as a means to achieve
                     JARPA II’s research objectives. The absence of any evidence pointing to
                     consideration of the feasibility of non‑lethal methods was not explained.

                       142. Decisions about the use of lethal methods in JARPA II must also
                     be evaluated in light of the Court’s previous conclusion that a programme
                     for purposes of scientific research may not use lethal methods on a larger
                     scale than is reasonable in relation to achieving its stated objectives in
                     order to fund that research (see paragraph 94 above).

                        143. The 2007 paper that Japan called to the Court’s attention (see
                     paragraphs 138 and 140 above) states that JARPA’s research objectives,
                     which required the examination of internal organs and a large number of
                     samples, meant that non‑lethal methods were “impractical, cost ineffec-
                     tive and prohibitively expensive”. It also states that “whale research is
                     costly and therefore lethal methods which could recover the cost for
                     research [are] more desirable”. No analysis is included in support of these
                     conclusions. There is no explanation of the relative costs of any methods
                     or a comparison of how the expense of lethal sampling, as conducted
                     under JARPA (or under JARPA II, which by 2007 was already opera-
                     tional), might be measured against the cost of a research programme that
                     more extensively uses non‑lethal alternatives.

                         144. The Court concludes that the papers to which Japan directed it
                     reveal little analysis of the feasibility of using non‑lethal methods to
                     achieve the JARPA II research objectives. Nor do they point to consider-
                     ation of the possibility of making more extensive use of non‑lethal
                     methods in order to reduce or eliminate the need for lethal sampling, either
                      when JARPA II was proposed or in subsequent years. Given the expanded
                      use of lethal methods in JARPA II, as compared to JARPA, this is diffi-
                      cult to reconcile with Japan’s obligation to give due regard to IWC reso-
                      lutions and Guidelines and its statement that JARPA II uses lethal
                      methods only to the extent necessary to meet its scientific objectives.
                      In addition, the 2007 paper to which Japan refers the Court suggests a
                      preference for lethal sampling because it provides a source of funding to
                      offset the cost of the research.

                     49

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                       (b) The scale of the use of lethal methods in JARPA II
                        145. The scale of lethal methods used in JARPA II is determined by
                     sample sizes, that is, the number of whales of each species to be killed
                     each year. The Parties introduced extensive evidence on this topic, relying
                     in particular on the JARPA II Research Plan, the actions taken under it
                     in its implementation, and the opinions of the experts that each Party
                     called.
                        146. Taking into account the Parties’ arguments and the evidence pre-
                     sented, the Court will begin by comparing the JARPA II sample sizes to
                     the sample sizes set in JARPA. It will then describe how sample sizes were
                     determined in the JARPA II Research Plan and present the Parties’ views
                     on the sample sizes set for each of the three species. Finally, the Court
                     will compare the target sample sizes set in the JARPA II Research Plan
                     with the actual take of each species during the programme. Each of these
                     aspects of the sample sizes selected for JARPA II was the subject of
                     extensive argument by Australia, to which Japan responded in turn.

                          (i) A comparison of JARPA II sample sizes to JARPA sample sizes
                        147. The question whether the lethal sampling of whales under JARPA
                     was “for purposes of scientific research” under Article VIII, paragraph 1,
                     of the Convention is not before the Court. The Court draws no legal con-
                     clusions about any aspect of JARPA, including the sample sizes used in
                     that programme. However, the Court notes that Japan has drawn com-
                     parisons between JARPA and JARPA II in addressing the latter pro-
                     gramme and, in particular, the sample sizes that were chosen for
                     JARPA II.
                        148. As noted above (see paragraph 104), JARPA originally proposed
                     an annual sample size of 825 minke whales per season. This was reduced
                     to 300 at JARPA’s launch, and after a number of years was increased to
                     400 (plus or minus 10 per cent). Thus, the JARPA II sample size for
                     minke whales of 850 (plus or minus 10 per cent) is approximately double
                     the minke whale sample size for the last years of JARPA. As also noted
                     above (see paragraph 110), JARPA II also sets sample sizes for two addi-
                     tional species — fin and humpback whales — that were not the target of
                     lethal sampling under JARPA.

                        149. To explain the larger minke whale sample size and the addition of
                     sample sizes for fin and humpback whales in JARPA II generally, Japan
                     stresses that the programme’s research objectives are “different and more
                     sophisticated” than those of JARPA. Japan also asserts that the emer-
                     gence of “a growing concern about climate change, including global

                     50

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                     273 	           whaling in the antarctic (judgment)

                     warming, necessitated research whaling of a different kind from JARPA”.
                     In particular, Japan argues that “JARPA was focused on a one‑time esti-
                     mation of different biological parameters for minke whales, but JARPA II
                     is a much more ambitious programme which tries to model competition
                     among whale species and to detect changes in various biological para
                     meters and the ecosystem”. It is on this basis, Japan asserts, that the “new
                     objectives” of JARPA II — “notably ecosystem research” — dictate the
                     larger sample size for minke whales and the addition of sample size tar-
                     gets for fin and humpback whales.

                        150. Given Japan’s emphasis on the new JARPA II objectives — par-
                     ticularly ecosystem research and constructing a model of multi‑species
                     competition — to explain the larger JARPA II sample size for minke
                     whales and the addition of two new species, the comparison between
                     JARPA and JARPA II deserves close attention.

                        151. At the outset, the Court observes that a comparison of the two
                     Research Plans reveals considerable overlap between the subjects, objec-
                     tives, and methods of the two programmes, rather than dissimilarity. For
                     example, the research proposals for both programmes describe research
                     broadly aimed at elucidating the role of minke whales in the Antarctic
                     ecosystem. One of the experts called by Australia, Mr. Mangel, stated
                     that JARPA II “almost exclusively focuses data collection on minke
                     whales”, which, the Court notes, was also true of JARPA. Specifically,
                     both programmes are focused on the collection of data through lethal
                     sampling to monitor various biological parameters in minke whales,
                     including, in particular, data relevant to population trends as well as data
                     relating to feeding and nutrition (involving the examination of stomach
                     contents and blubber thickness). JARPA included both the study of stock
                     structure to improve stock management and research on the effect of
                     environmental change on whales (objectives that were not included in the
                     original research proposal for JARPA, but were added later), and
                     JARPA II also includes the study of these issues.

                        152. The Court notes that Japan states that “the research items and
                     methods” of JARPA II are “basically the same as those employed for
                     JARPA”, which is why “the explanation for the necessity of lethal
                     sampling provided regarding JARPA also applies to JARPA II”. Australia
                      makes the point that “in practice Japan collects the same data” under
                      JARPA II “that it collected under JARPA”. Japan also asserts broadly
                      that both programmes “are designed to further proper and effective
                      management of whale stocks and their conservation and sustainable use”.

                     51

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                     274 	           whaling in the antarctic (judgment)

                        153. Taken together, the overall research objectives of JARPA and
                     JARPA II, as well as the subjects of study and methods used (i.e., exten-
                     sive lethal sampling of minke whales) thus appear to have much in com-
                     mon, even if certain aspects differ. These similarities cast doubt on Japan’s
                     argument that the JARPA II objectives relating to ecosystem monitoring
                     and multi‑species competition are distinguishing features of the latter
                     programme that call for a significant increase in the minke whale sample
                     size and the lethal sampling of two additional species.

                        154. There is another reason to question whether the increased minke
                     whale sample size in the JARPA II Research Plan is accounted for by dif-
                     ferences between the two programmes. As previously noted, Japan
                     launched JARPA II without waiting for the results of the Scientific Com-
                     mittee’s final review of JARPA. Japan’s explanation to the Court was
                     that “it was important to keep the consistency and continuity in data
                     obtained in the research area” and that waiting to commence JARPA II
                     only following the final review of JARPA would have meant “no survey
                     in one or two years”. The JARPA II Research Plan also frames the
                     monitoring of whale abundance trends and biological parameters as

                     designed “to secure continuity with the data collected in JARPA”.

                        155. This emphasis on the importance of continuity confirms the over-
                     lap in the focus of the two programmes and further undermines Japan’s
                     reliance on JARPA II’s objectives to explain the larger minke whale sam-
                     ple size in JARPA II. Japan does not explain, for example, why it would
                     not have been sufficient to limit the lethal take of minke whales during the
                     “feasibility” phase of JARPA II (its first two years) to 440 minke whales,
                     the maximum number of minke whales that were targeted during the final
                     season of JARPA. Instead, 853 minke whales were taken during the first
                     year of JARPA II, in addition to ten fin whales. This also meant that
                     JARPA II began using the higher sample size for minke whales, and
                     similar research methods (e.g., the examination of ear plugs to obtain
                      age data and the examination of blubber thickness to assess nutritional
                      conditions) without having yet received the benefit of any feedback from
                      the final review of JARPA by the Scientific Committee.

                        156. These weaknesses in Japan’s explanation for the decision to pro-
                     ceed with the JARPA II sample sizes prior to the final review of JARPA
                     lend support to the view that those sample sizes and the launch date for
                     JARPA II were not driven by strictly scientific considerations. These
                     weaknesses also give weight to the contrary theory advanced by Austra-
                     lia — that Japan’s priority was to maintain whaling operations without
                     any pause, just as it had done previously by commencing JARPA in the
                     first year after the commercial whaling moratorium had come into effect
                     for it.

                     52

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                     275 	            whaling in the antarctic (judgment)

                          (ii) Determination of species‑specific sample sizes
                        157. Bearing in mind these observations regarding Japan’s general
                     explanation for the difference between the JARPA and JARPA II sample
                     sizes, the Court turns next to the evidence regarding the way that Japan
                     determined the specific target sample sizes for each of the three species in
                     JARPA II.

                        158. As a general matter, Australia asserts that Japan has failed to
                     provide “a coherent scientific rationale” for the JARPA II sample sizes.
                     One of the experts called by Australia, Mr. Mangel, took the view that
                     “[i]t is very difficult to understand the statistical basis for setting the level
                     of lethal take” in JARPA II. He focused in particular on the determina-
                     tion of the particular sample sizes that would be required to study differ-
                     ent parameters, stating that “a range is given and then a particular
                     number is picked without any explanation for that number”. In Austra-
                     lia’s view, the JARPA II Research Plan fails adequately to provide the
                     rationales for the choices made therein and employs inconsistent method-
                     ologies. In essence, Australia’s contention is that Japan decided that it
                     wished to take approximately 850 minke whales for purposes other than
                     scientific research and then “retro‑fitted” individual sample sizes to justify
                     the overall sample size.

                        159. Japan asserts that, contrary to Australia’s characterization of the
                     programme, the JARPA II sample sizes “were calculated on the basis of
                     carefully selected parameters, using a standard scientific formula, whilst
                     also taking into account the potential effects of research on whale popula-
                     tions”. Japan also argues that the sample sizes are based on “norms used
                     by the Scientific Committee”, which has never expressed “any specific
                     concern about the JARPA II sample size”.
                        The expert called by Japan, Mr. Walløe, also addressed the setting of
                     sample sizes in JARPA II. He stated that “Japanese scientists have not
                     always given completely transparent and clear explanations of how sam-
                     ple sizes were calculated or determined”. He indicated, however, that the
                     minke whale sample size seemed to be “of the right magnitude” on the
                     basis of his own calculations (which were not provided to the Court). In
                     addition, Professor Walløe stated his impression that JARPA II sample
                     sizes had been “influenced by funding considerations”, although he found
                     this unobjectionable.

                       160. Based on Japan’s arguments and the evidence that it has pre-
                     sented, including, in particular, the JARPA II Research Plan, the Court
                     discerns five steps to this process of sample size determination.

                       161. The first step is to identify the types of information that are rele-
                     vant to the broader objectives of the research. Japan refers to these as
                     “research items”. For example, the research items of interest in JARPA II

                     53

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                     276 	            whaling in the antarctic (judgment)

                     include pregnancy rate, the age at which whales reach sexual maturity
                     and feeding patterns.

                         162. The second step is to identify a means to obtain the data relevant
                     to a given research item. For example, Japan maintains that it is neces-
                     sary to collect ear plugs from whales in order to determine age, that
                     stomach contents can be examined to evaluate eating habits, and that
                      measuring blubber thickness is a means to study changes in prey condi-
                      tions (e.g., the availability of krill as a food source).

                        163. After it has been determined that information relevant to a
                     research item is to be obtained from lethal sampling, the third step is to
                     determine how many whales are necessary in order to have a sufficiently
                     large number of samples to detect changes relevant to the particular
                     research item. For several research items, the determination of this num-
                     ber takes into account at least three variables : (i) the level of accuracy
                     sought ; (ii) the change to be measured ; and (iii) the research period (i.e.,
                     the time within which a change is to be detected). This means that the
                     number of whales needed for a particular research item depends, for
                     example, on how accurate the results are required to be, on whether the
                     change to be measured is large or small, and on the period over which
                     one seeks to detect that change.

                       164. For a given research item, a standard equation is used to perform
                     a calculation that shows the effect that differences in these variables
                     would have on sample size. Australia did not challenge Japan’s use of
                     that equation.
                       165. To illustrate this third step, the Court calls attention to one exam-
                     ple from the JARPA II Research Plan that shows how the researchers
                     approached the selection of a sample size for a particular research item :
                     the change in the proportion of pregnant minke whales in the population
                     of mature female whales. The relevant table from the Research Plan,
                     which appears as Table 2 to Appendix 6 (“Sample sizes of Antarctic
                     minke, humpback and fin whales required for statistical examination of
                     yearly trend in biological parameters”) to that document, is reproduced
                     below. The far‑left column shows that the JARPA II researchers consid-
                     ered using either a six‑year or a 12‑year research period and the second
                     column shows that they considered using either of two estimates of the
                     “initial rate” (i.e., whether the proportion of pregnant minke whales in
                     the population of mature female whales at the start of the research was
                     80 or 90 per cent). The researchers then calculated how many whales
                     would be required — depending on the research period and the estimated
                     “initial rate” — to detect different rates of change in the proportion of
                     pregnant minke whales (shown in percentages in the top row of the
                     chart). The table is set forth below :

                     54

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                               Table 2. Total sample size of Antarctic minke whales required
                                for statistical examination of yearly trend [in the proportion
                                    of pregnant minke whales in the population of mature
                                                       female whales]
                     Research     Initial                              Rate of change
                      period       rate
                                   (%)      +1%    –1% +1.5% –1.5% +2%         –2% +2.5% –2.5% +3%        –3%

                                    80      2022   2544   984   1089    618    591      462   369   402   249
                     6 years
                                    90       912   1617   609    663     –     348       –    210    –    138
                                    80       189   312    129   132      –      72      –     45    –     30
                     12 years
                                    90        –    213     –     87      –      45      –     27    –     18
                          (Source : Counter‑Memorial of Japan, Vol. IV, Ann. 150, App. 6.)

                        166. This table illustrates how the selection of a particular value for
                     each variable affects the sample size. For example, the decision to use a
                     particular research period has a pronounced effect on the sample size. In
                     order to detect a rate of change of minus 1.5 per cent and assuming an
                     initial rate of 90 per cent (which were the criteria ultimately chosen by
                     JARPA II researchers), a six‑year period requires an annual sample size
                     of 663 whales while the 12‑year period requires an annual sample size of
                     87 whales. The table also illustrates that small differences in the rate of
                     change to detect can have a considerable effect on sample size. For exam-
                     ple, in order to detect a change of minus 1 per cent over a six‑year period
                     (assuming an initial rate of 90 per cent), the required yearly sample size is
                     1,617 whales. To detect a change of minus 2 per cent under the same cir-
                     cumstances, the required yearly sample size is 348 whales.

                        167. The fourth step is the selection of a particular sample size for each
                     research item from the range of sample sizes that have been calculated
                     depending on these different underlying decisions relating to level of
                     accuracy, rate of change and research period. With respect to the above
                      example, the JARPA II researchers recommended a sample size in the
                      range of 663 to 1,617 whales in order to detect a rate of change from
                      minus 1 to minus 1.5 per cent within a six‑year period.

                       168. Based on the evidence presented by Japan, after the JARPA II
                     researchers select a particular sample size for each research item, the fifth
                     and final step in the calculation of sample size is to choose an overall
                     sample size in light of the different sample sizes (or ranges of sample sizes,
                     as in the above example) required for different aspects of the study.
                     Because different research items require different sample sizes, it is neces-
                     sary to select an overall sample size for each species that takes into
                     account these different research requirements.

                     55

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                        169. To determine the overall sample size for Antarctic minke whales
                     in JARPA II, for example, Japan asserts that it looked at the possible
                     sample size ranges for each research item and selected the sample size of
                     850 (plus or minus 10 per cent) because that number of whales can pro-
                     vide sufficient data on most research items with “a reasonable level of
                     statistical accuracy overall”, but “will cause no harm to the stock”.

                        170. It is important to clarify which steps in the above‑described pro-
                     cess give rise to disagreement between the Parties, in order to bring into
                     focus the reasons for the Parties’ detailed arguments in relation to sample
                     sizes. As discussed above, there is disagreement about whether lethal
                     methods are warranted and whether the information being gathered
                     through the use of lethal methods is reliable and valuable (the first and
                     second steps), but that disagreement is addressed elsewhere in this Judg-
                     ment (see paragraphs 128‑144). The proceedings revealed some areas of
                     methodological agreement in respect of the third step. For example, the
                     equation and the calculations used to create tables like the one shown
                     above are not in dispute. There is also agreement that researchers need to
                     make choices about variables such as the rate of change to detect or the
                     length of a research period as part of the design of a scientific programme.

                        171. For present purposes, the critical differences between the Parties
                     emerge at the fourth and fifth steps of the process of setting sample sizes.
                     These differences are reflected in the arguments of the Parties summarized
                     above (see paragraphs 157‑159).

                        172. In considering these contentions by the Parties, the Court reiter-
                     ates that it does not seek here to pass judgment on the scientific merit of
                     the JARPA II objectives and that the activities of JARPA II can broadly
                     be characterized as “scientific research” (see paragraphs 88 and 127
                     above). With regard to the setting of sample sizes, the Court is also not in
                     a position to conclude whether a particular value for a given variable
                     (e.g., the research period or rate of change to detect) has scientific advan-
                     tages over another. Rather, the Court seeks here only to evaluate whether
                     the evidence supports a conclusion that the sample sizes are reasonable in
                     relation to achieving JARPA II’s stated objectives.

                       173. The Court begins by considering the way that Japan set the target
                     sample sizes for fin and humpback whales.

                             (1) Fin and humpback whales
                       174. For fin whales and humpback whales, the annual JARPA II lethal
                     sample size is 50 per species. The JARPA II Research Plan states that the

                     56

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                     279 	            whaling in the antarctic (judgment)

                     same conditions and criteria were used to set sample sizes for the two spe-
                     cies, so the Court considers them together.

                        175. Sample sizes for both species were calculated on the basis of two
                     “research items” : apparent pregnancy rate and age at sexual maturity.
                     The JARPA II Research Plan describes these research items, which
                     according to Japan involve the examination of ear plugs and reproductive
                     organs, as essential to the objectives of the programme. The Research
                     Plan does not indicate the reason for using only two parameters to estab-
                     lish the sample sizes for these two species, as compared to the larger num-
                     ber of parameters used to calculate the minke whale sample size (see
                     paragraph 182 below). As noted above, however (see paragraphs 165‑166),
                     a review of the JARPA II Research Plan establishes that decisions con-
                     cerning, for example, the particular rate of change to detect, among other
                     relevant variables, have a pronounced impact on the resulting sample
                     size.
                        176. Although the JARPA II Research Plan sets forth possible sample
                     sizes for fin and humpback whales that contemplate both six‑year and
                     12‑year research periods, the plan explains that researchers chose to use
                     the 12‑year research period for both species. It states that a six‑year period
                     would be “preferable since the research programme will be reviewed every
                     six years” but would require “large” sample sizes. The Research Plan
                     states that a 12‑year period was thus chosen as a “precautionary
                     approach”. In the oral proceedings, Japan offered an additional reason
                     for the choice of a 12‑year period : that a shorter period is unnecessary for
                     these two species because implementation of the RMP for fin and hump-
                     back whales is not yet under consideration.

                       177. The Court does not need to decide whether a particular research
                     period, taken in isolation, is more or less appropriate for a given species
                     of whales. The selection of a 12‑year period for two of three species, how-
                     ever, must be considered in light of other aspects of the design of
                     JARPA II, including the selection of a six‑year research period for detect-
                     ing various changes in minke whales. In particular, Japan emphasizes
                     multi‑species competition and ecosystem research as explanations for the
                     minke whale sample size of 850, as well as for including fin and hump-
                     back whales in the programme. JARPA II was designed with a six‑year
                     “research phase” after which a review will be held and revisions may be
                     made. It is difficult to see how there could be a meaningful review of
                     JARPA II in respect of these two critical objectives after six years if the
                     research period for two of three species is 12 years.

                       178. Thus, the selection of a 12‑year research period for fin whales and
                     humpback whales is one factor that casts doubt on the centrality of the

                     57

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                     280 	           whaling in the antarctic (judgment)

                     objectives that Japan highlights to justify the minke whale sample size of
                     850 (plus or minus 10 per cent).

                        179. Another factor casts doubt on whether the design of JARPA II is
                     reasonable in relation to achieving the programme’s stated objectives.
                     The overall sample sizes selected for fin and humpback whales —
                     50 whales of each species per year — are not large enough to allow for the
                     measurement of all the trends that the programme seeks to measure. Spe-
                     cifically, the JARPA II Research Plan states that at least 131 whales of
                     each species should be taken annually to detect a particular rate of change
                     in age at sexual maturity. The Research Plan does not indicate whether
                     the researchers decided to accept a lower level of accuracy or instead
                     adjusted the rate of change that they sought to detect by targeting fewer
                     whales, nor did Japan explain this in the present proceedings. In light of
                     the calculations of its own scientists, JARPA II does not appear designed
                     to produce statistically relevant information on at least one central
                     research item to which the JARPA II Research Plan gives particular
                     importance.

                        180. The Court also notes that the expert called by Japan, Mr. Walløe,
                     raised concerns about the fin whale component of JARPA II that go
                     beyond the sample size. Mr. Walløe testified that the fin whale proposal
                     was “not very well conceived” for two reasons. He stated that random
                     sampling of fin whales within the JARPA II research area is not possible,
                     first, because the main fin whale population is beyond the JARPA II
                     research area — further to the north — and, secondly, because the
                     JARPA II vessels can only accommodate the lethal take of smaller fin
                     whales (a point also raised by Australia). The Court recalls that Japan
                     identified random sampling as an element of a programme for purposes
                     of scientific research.
                        181. The Court finds that the JARPA II Research Plan overall pro-
                     vides only limited information regarding the basis for the decisions used
                     to calculate the fin and humpback whale sample size. These sample sizes
                     were set using a 12‑year period, despite the fact that a shorter six‑year
                     period is used to set the minke whale sample size and that JARPA II is to
                     be reviewed after each six‑year research phase. Based on Japan’s own cal-
                     culations, the sample sizes for fin and humpback whales are too small to
                     produce statistically useful results. These shortcomings, in addition to the
                     problems specific to the decision to take fin whales, as noted in the pre-
                     ceding paragraph, are important to the Court’s assessment of whether the
                     overall design of JARPA II is reasonable in relation to the programme’s
                     objectives, because Japan connects the minke whale sample size (dis-
                     cussed below) to the ecosystem research and multi‑species competition
                     objectives that, in turn, are premised on the lethal sampling of fin and
                     humpback whales.

                     58

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                     281 	              whaling in the antarctic (judgment)

                              (2) Antarctic minke whales
                        182. The Court turns next to the design of the sample size for Antarc-
                     tic minke whales in JARPA II. The JARPA II Research Plan indicates
                     that the overall sample size for minke whales was chosen following
                     Japan’s calculation of the minimum sample size for a number of different
                     research items, including age at sexual maturity, apparent pregnancy rate,
                     blubber thickness, contaminant levels, mixing patterns between different
                     stocks and population trends. The plan further states that for most
                     parameters “the sample sizes calculated were in a range of 800‑1,000 ani-
                     mals with more than 800 being desirable”. Japan describes the process
                     that it followed to determine the overall sample size for minke whales
                     with reference to the following illustration that appears as Figure 5‑4 in
                     its Counter‑Memorial :

                     — Figure 5‑4 : “Necessary annual sample sizes for respective research
                       items under JARPA II, which was calculated by the established statis-
                       tical procedures (source : Institute of Cetacean Research).”

                     (Source : Counter‑Memorial of Japan, Vol. I, p. 261.)

                        183. As depicted in this illustration, the overall sample size falls within
                     a range that corresponds to what the JARPA II Research Plan sets forth
                     as the minimum requirements for most of the research that JARPA II is
                     designed to undertake. Japan asserts that for this reason, the overall

                     59

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                     282 	           whaling in the antarctic (judgment)

                     annual lethal sample size was set at 850 (plus or minus 10 per cent, which
                     allows for a maximum of 935 minke whales per year). As noted above
                     (see paragraphs 159 and 169), Japan considered this number of whales to
                     be sufficient for purposes of research, taking into account the need to
                     avoid causing harm to the stocks.
                        184. In contrast, in Australia’s view, Japan started with the goal of
                     establishing a sample size of approximately 850 minke whales per year
                     and then “retro‑fitted” the programme’s design by selecting values
                     designed to generate sample sizes for particular research items that cor-
                     responded to Japan’s desired overall sample size. Australia emphasizes
                     that the JARPA II Research Plan is not clear in stating the reasons for
                     the selection of the particular sample size appertaining to each research
                     item. Australia also notes that different choices as to values for certain
                     variables would have led to dramatically smaller sample sizes, but that, in
                     general, the JARPA II Research Plan provides no explanation for the
                     underlying decisions to use values that generate larger sample sizes. These
                     shortcomings, in Australia’s view, support its conclusion that the minke
                     whale sample size was set not for purposes of scientific research, but
                     instead to meet Japan’s funding requirements and commercial objectives.

                        185. In light of these divergent views, the Court will consider the evi-
                     dence regarding Japan’s selection of the various minimum sample sizes
                     that it chose for different individual research items, which form the basis
                     for the overall sample size for minke whales. As noted above (see para-
                     graph 172), the purpose of such an inquiry is not to second‑guess the
                     scientific judgments made by individual scientists or by Japan, but rather
                     to examine whether Japan, in light of JARPA II’s stated research objec-
                     tives, has demonstrated a reasonable basis for annual sample sizes per-
                     taining to particular research items, leading to the overall sample size
                     of 850 (plus or minus 10 per cent) for minke whales.

                         186. In the JARPA II Research Plan, individual sample size calcula-
                     tions are presented with respect to each of the items referred to in the
                     above illustration : age at sexual maturity, apparent pregnancy rate,
                     blubber thickness, pathological monitoring (i.e., monitoring of contami-
                      nant levels), mixing patterns between different stocks, and “DNA
                      mark‑recapture”, which Japan describes as a method for researching
                      population trends.

                        187. The Court notes at the outset that the JARPA II Research Plan
                     states that for all parameters, “a sample size needed to detect changes in
                     a six‑year period . . . has been adopted as the pertinent criterion”. The
                     JARPA II Research Plan does not explain the reason for this threshold
                     decision, but Japan offered some explanations during these proceedings,
                     which are discussed below (see paragraph 192).

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                        188. The evidence shows that the JARPA II Research Plan lacks trans-
                     parency in the reasons for selecting particular sample sizes for individual
                     research items. This is a matter on which the experts called by the two
                     Parties agreed, as described above (see paragraphs 158‑159). With the
                     exception of one variable (discussed in the next paragraph), the JARPA II
                     Research Plan provides very limited information regarding the selection
                     of a particular value for a given variable. For example, in the Court’s
                     view, there is no consistent effort to explain why, for the various research
                     items relating to the monitoring of biological parameters, JARPA II is
                     designed to detect one particular rate or degree of change over another
                     that would result in a lower sample size. These shortcomings of the
                     JARPA II Research Plan have particular prominence in light of the fact
                     that the particular choices of rate and degree of change consistently lead
                     to a sample size of approximately 850 minke whales per year.

                        189. An exception to this pattern is arguably the discussion of the sam-
                     ple size applicable to the study of the age at sexual maturity of minke
                     whales, as to which the JARPA II Research Plan furnishes some details
                     about the factors that Japan considered in selecting the particular rate of
                     change to detect. For this research item, the Research Plan also offers an
                     indication of the relationship between the data sought and the first two
                     JARPA II research objectives. The Court finds no comparable reasoning
                     given as to the five other research items that were expressly used to set the
                     overall sample size of 850 whales (i.e., those research items set forth in
                     Figure 5‑4 from Japan’s Counter‑Memorial above). This highlights the
                     absence of evidence, at least in the JARPA II Research Plan, that could
                     support a finding that the sample size for the lethal take of minke whales,
                     a key component of the design of JARPA II, is reasonable in relation to
                     achieving the programme’s objectives.
                        190. The Court also recalls that one of the experts called by Australia,
                     Mr. Mangel, asserted that nearly the same level of accuracy that JARPA II
                     seeks could be obtained with a smaller lethal take of minke whales and
                     further posited that a smaller take and higher margin of error might be
                     acceptable, depending on the hypothesis under study. Japan did not
                     refute this expert opinion.

                        191. The Court turns next to the evidence regarding Japan’s decision
                     to use a six‑year period to calculate the sample sizes for research items
                     corresponding to minke whales, rather than a 12‑year period as was used
                     for fin and humpback whales. That decision has a considerable effect on
                     sample size because the shorter time‑period generally requires a higher
                     figure, as the JARPA II Research Plan demonstrates (see paragraph 165
                     above).

                       192. Japan, in discussing one research item (age at sexual maturity) in
                     the Counter‑Memorial, attributes the use of a six‑year period to the need

                     61

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                     284 	           whaling in the antarctic (judgment)

                     to obtain at least three data points from each JARPA II research area
                     (since whales are taken from each area in alternating seasons), because it
                     would be “highly uncertain” to detect a trend on the basis of only two
                     data points. Japan also refers to the desirability of detecting change “as
                     promptly as possible”. In the oral proceedings, Japan offered two differ-
                     ent rationales for the six‑year period. After initially suggesting that the
                     six‑year period was intended to coincide with JARPA II’s six‑year review
                     by the Scientific Committee, Japan withdrew that explanation and
                     asserted that the six‑year period for minke whales was chosen because it
                     “coincides with the review period for the RMP”. This corresponds to the
                     explanation given by the expert called by Japan, Mr. Walløe, in his oral
                     testimony, although Mr. Walløe also described the use of a six‑year
                     period to calculate sample sizes as “arbitrary”.

                         193. In light of the evidence, the Court has no basis to conclude that a
                     six‑year research period for minke whales is not reasonable in relation to
                     achieving the programme’s objectives. However, the Court finds it
                     problematic that, first, the JARPA II Research Plan does not explain the
                      reason for choosing a six‑year period for one of the whale species
                      (minke whales) and, secondly, Japan did not offer a consistent explana-
                      tion during these proceedings for the decision to use that research period
                      to calculate the minke whale sample size.

                        194. Moreover, Japan does not address how disparate research time
                     frames for the three whale species are compatible with JARPA II’s
                     research objectives relating to ecosystem modelling and multi‑species
                     competition. JARPA II is apparently designed so that statistically useful
                     information regarding fin and humpback whales will only be available
                     after 12 years of research (and the evidence indicates that, even after
                     12 years, sample sizes would be insufficient to be statistically reliable
                     based on the minimum requirements set forth in the JARPA II Research
                     Plan). As noted above (see paragraph 181), this casts doubt on whether it
                     will be meaningful to review the programme in respect of its two primary
                     objectives after six years of operation, which, in turn, casts doubt on
                     whether the minke whale target sample size is reasonable in relation to
                     achieving the programme’s objectives.

                        195. The Court thus identifies two overarching concerns with regard to
                     the minke whale sample size. First, Figure 5‑4 shows that the final sample
                     size of 850 minke whales (plus or minus 10 per cent) falls within a range
                     derived from the individual sample sizes for various research items, but
                     there is a lack of transparency regarding the decisions made in selecting
                     those individual sample sizes. The Court notes that a lack of transparency
                     in the JARPA II Research Plan and in Japan’s subsequent efforts to
                     defend the JARPA II sample size do not necessarily demonstrate that the

                     62

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                     285 	           whaling in the antarctic (judgment)

                     decisions made with regard to particular research items lack scientific jus-
                     tification. In the context of Article VIII, however, the evidence regarding
                     the selection of a minimum sample size should allow one to understand
                     why that sample size is reasonable in relation to achieving the pro-
                     gramme’s objectives, when compared with other possible sample sizes
                     that would require killing far fewer whales. The absence of such evidence
                     in connection with most of the sample size calculations described in the
                     JARPA II Research Plan lends support to Australia’s contention that a
                     predetermined overall sample size has dictated the choice of the research
                     period and the rate of change to be detected, rather than the other way
                     around.

                        196. Secondly, as noted above (see paragraph 149), Japan justifies the
                     increase in the minke whale sample size in JARPA II (as compared to the
                     JARPA sample size) by reference to the research objectives relating to
                     ecosystem research and multi‑species competition. However, the evidence
                     suggests that the programme’s capacity to achieve these objectives has
                     been compromised because of shortcomings in the programme’s design
                     with respect to fin and humpback whales. As such, it is difficult to see
                     how these objectives can provide a reasonable basis for the target sample
                     size for minke whales in JARPA II.

                        197. In addition, the Court recalls that Japan describes a number of
                     characteristics that, in its view, distinguish commercial whaling from
                     research whaling. Japan notes, in particular, that high‑value species are
                     taken in commercial whaling, whereas species of both high value and of
                     less or no commercial value (such as sperm whales) may be taken in
                     research whaling (see paragraph 89 above). The use of lethal methods in
                     JARPA II focuses almost exclusively on minke whales. As to the value of
                     that species, the Court takes note of an October 2012 statement by the
                     Director‑General of Japan’s Fisheries Agency. Addressing the Sub-
                     committee of the House of Representatives Committee on Audit and
                     Oversight of Administration, he stated that minke whale meat is “prized
                     because it is said to have a very good flavour and aroma when eaten as
                     sashimi and the like”. Referring to JARPA II, he further stated that “the
                     scientific whaling program in the Southern Ocean was necessary to
                     achieve a stable supply of minke whale meat”. In light of these state-
                     ments, the fact that nearly all lethal sampling under JARPA II concerns
                     minke whales means that the distinction between high‑value and low‑value
                     species, advanced by Japan as a basis for differentiating commercial whal-
                     ing and whaling for purposes of scientific research, provides no support
                     for the contention that JARPA II falls into the latter category.

                     63

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                        198. Taken together, the evidence relating to the minke whale sample
                     size, like the evidence for the fin and humpback whale sample sizes, pro-
                     vides scant analysis and justification for the underlying decisions that
                     generate the overall sample size. For the Court, this raises further con-
                     cerns about whether the design of JARPA II is reasonable in relation to
                     achieving its stated objectives. These concerns must also be considered in
                     light of the implementation of JARPA II, which the Court turns to in the
                     next section.

                          (iii) Comparison of sample size to actual take
                        199. There is a significant gap between the JARPA II target sample
                     sizes and the actual number of whales that have been killed in the imple-
                     mentation of the programme. The Parties disagree as to the reasons for
                     this gap and the conclusions that the Court should draw from it.
                        200. The Court recalls that, for both fin whales and humpback whales,
                     the target sample size is 50 whales, following a two‑year feasibility study
                     during which the target for humpback whales was zero and the target for
                     fin whales was ten.

                       201. As to actual take, the evidence before the Court indicates that a
                     total of 18 fin whales have been killed over the first seven seasons of
                     JARPA II, including ten fin whales during the programme’s first year
                     when the feasibility of taking larger whales was under study. In subse-
                     quent years, zero to three fin whales have been taken annually. No hump-
                     back whales have been killed under JARPA II. Japan recounts that after
                     deciding initially not to sample humpback whales during the first two
                     years of JARPA II, it “suspended” the sampling of humpback whales as
                     of 2007. The Court observes, however, that the permits issued for
                     JARPA II since 2007 continue to authorize the take of humpback whales.

                        202. Notwithstanding the target sample size for minke whales of 850
                     (plus or minus 10 per cent), the actual take of minke whales under
                     JARPA II has fluctuated from year to year. During the 2005‑2006 season,
                     Japan caught 853 minke whales, a number within the targeted range.
                     Actual take has fallen short of the JARPA II sample size target in all
                     subsequent years. On average, approximately 450 minke whales have
                     been killed in each year. The evidence before the Court indicates that
                     170 minke whales were killed in the 2010‑2011 season and that 103 minke
                     whales were killed in the 2012‑2013 season.
                        203. As to the reasons for the gap between target sample sizes and
                     actual take, Japan states that it decided not to take any humpback whales
                     in response to a request by the then‑Chair of the IWC. With respect to
                     fin whales, Japan points to sabotage activities by anti‑whaling non‑
                     governmental organizations, noting in particular the Sea Shepherd Con-
                     servation Society, and to the inability of the main JARPA II research

                     64

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                     287 	           whaling in the antarctic (judgment)

                     vessel, the Nisshin Maru, to pull on board larger whales. As to minke
                     whales, Japan offers two reasons that actual sample sizes have been smaller
                     than targets : a fire on board the Nisshin Maru in the 2006‑2007 season
                     and the aforementioned sabotage activities.

                        204. Japan refers in particular to incidents of sabotage during the
                     2008‑2009 season (the ramming of vessels in February 2009 and the throw-
                     ing of bottles of acid at Japanese vessels), the unauthorized boarding of
                     the vessel Shonan‑Maru in February 2010, which resulted in the with-
                     drawal of that vessel from the fleet for the remainder of the 2009‑2010 sea-
                     son for crime scene investigation, and additional harassment during the
                     2012‑2013 season. Japan notes that the IWC has condemned such violent
                     sabotage activities in a series of resolutions adopted by consensus.
                        205. Australia takes issue with Japan’s account of the reasons for the
                     gap between target sample sizes and actual take. Australia does not dis-
                     pute that the decision to take no humpback whales was made in response
                     to a request from the Chair of the IWC, but points out that this was a
                     political decision, not a decision taken for scientific reasons. With respect
                     to fin whales, Australia emphasizes the undisputed fact that Japan’s ves-
                     sels are not equipped to catch larger whales. As to minke whales, Austra-
                     lia points to evidence that, in its view, demonstrates that actual take is a
                     function of the commercial market for whale meat in Japan, not the fac-
                     tors identified by Japan. According to Australia, Japan has adjusted the
                     operations of JARPA II in response to lower demand for whale meat,
                     resulting in shorter seasons and fewer whales being taken. Australia also
                     invokes press reports of statements by Japanese officials indicating that
                     JARPA II’s research objectives do not actually require the amount of
                     lethal sampling described in the Research Plan and can be accomplished
                     with a smaller actual take.

                        206. Taking into account all the evidence, the Court considers that no
                     single reason can explain the gap between the target sample sizes and the
                     actual take. As to humpback whales, the gap results from Japan’s deci-
                     sion to accede to a request from the Chair of the IWC but without mak-
                     ing any consequential changes to the objectives or sample sizes of
                     JARPA II. The shortfall in fin whales can be attributed, at least in part,
                     to Japan’s selection of vessels, an aspect of the design of JARPA II criti-
                     cized by the expert called by Japan (see paragraph 180 above). As to the
                     fire on board a ship in one season, Japan did not provide information
                     regarding the extent of the damage or the amount of time during which
                     the vessel was compromised. The Court considers it plausible that sabo-
                     tage activities could have contributed to the lower catches of minke
                     whales in certain seasons, but it is difficult to assess the extent of such a

                     65

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                     288 	           whaling in the antarctic (judgment)

                     contribution. In this regard, the Court notes that the actual take of minke
                     whales in the 2006‑2007 and 2007‑2008 seasons was 505 and 551, respec-
                     tively, prior to the regrettable sabotage activities that Japan has brought
                     to the Court’s attention. In this context, the Court recalls IWC resolu-
                     tion 2011‑2, which was adopted by consensus. That resolution notes
                     reports of the dangerous actions by the Sea Shepherd Conservation Soci-
                     ety and condemns “any actions that are a risk to human life and property
                     in relation to the activities of vessels at sea”.

                        207. The Court turns next to Australia’s contention that the gap
                     between the target sample sizes and the actual take undermines Japan’s
                     position that JARPA II is a programme for purposes of scientific research.
                     Australia states that it welcomes the fact that the actual take under
                     JARPA II has been smaller than the programme’s target sample sizes.
                     Australia asserts, however, that Japan has made no effort to explain how
                     this discrepancy affects the JARPA II research objectives and has not
                     adapted the programme to account for the smaller actual sample size.
                     Japan also has not explained how the political decision not to take hump-
                     back whales, as well as the small number of fin whales that have been
                     killed, can be reconciled with the emphasis of the JARPA II Research
                     Plan on the need for the lethal sampling of those two species. Australia
                     asks how a multi‑species competition model can be constructed on the
                     basis of data only from minke whales, if, as stated in the JARPA II
                     Research Plan, information based on lethal sampling is required from all
                     three species to construct such a model or to explore the “krill surplus
                     hypothesis”. Australia emphasizes that Japan has asserted that the infor-
                     mation it needs can be obtained only by lethal take but that the actual
                     take has been entirely different from the sample sizes on which JARPA II
                     was premised. Citing these factors, Australia describes JARPA II’s
                     multi‑species competition model goal as “illusory”.

                        208. Japan asserts that the discrepancy between sample size and actual
                     take, at least with regard to minke whales, likely means that “it will take
                     several additional years of research to achieve the required sample sizes
                     before the research objectives can be met”. Along these lines, Japan states
                     that “if we conduct the research over a longer time or are willing to accept
                     a lower degree of accuracy then a smaller sample size will also give viable
                     results, but it might delay the ability to detect potentially important
                     changes in a stock’s dynamics”. Japan also takes the position that the
                     under‑take to date of fin and humpback whales “does not preclude exist-
                     ing ecosystem models . . . from being improved by use of data that
                     JARPA II has collected in respect of these species by non‑lethal means”.

                     66

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                        209. The Court observes that, despite the number of years in which the
                     implementation of JARPA II has differed significantly from the design of
                     the programme, Japan has not made any changes to the JARPA II objec-
                     tives and target sample sizes, which are reproduced in the special permits
                     granted annually. In the Court’s view, two conclusions can be drawn
                     from the evidence regarding the gap between the target sample sizes and
                     actual take. First, Japan suggests that the actual take of minke whales
                     does not compromise the programme, because smaller numbers of minke
                     whales can nonetheless generate useful information, either because the
                     time frame of the research can be extended or because less accurate results
                     could be accepted. The Court recalls, however, that the minke whale sam-
                     ple sizes for particular research items were based on a six‑year research
                     period and on levels of accuracy that were not explained in the JARPA II
                     Research Plan or in these proceedings. Japan’s statement that the pro-
                     gramme can achieve scientifically useful results with a longer research
                     period or a lower level of accuracy thus raises further doubts about
                     whether the target sample size of 850 whales is reasonable in relation to
                     achieving the stated objectives of JARPA II. This adds force to Aus
                     tralia’s contention that the target sample size for minke whales was set
                     for non‑scientific reasons.

                       210. Secondly, despite the fact that no humpback whales and few fin
                     whales have been caught during JARPA II, Japan’s emphasis on
                     multi‑species competition and ecosystem research as the bases for the
                     JARPA II sample sizes for all three species is unwavering. In the view of
                     the Court, the gap between the target sample sizes for fin and humpback
                     whales in the JARPA II Research Plan and the actual take of these two
                     species undermines Japan’s argument that the objectives relating to eco-
                     system research and multi‑species competition justify the larger target
                     sample size for minke whales, as compared to that in JARPA.

                       211. The Court also notes Japan’s contention that it can rely on
                     non‑lethal methods to study humpback and fin whales to construct an
                     ecosystem model. If this JARPA II research objective can be achieved
                     through non‑lethal methods, it suggests that there is no strict scientific
                     necessity to use lethal methods in respect of this objective.

                       212. Japan’s continued reliance on the first two JARPA II objectives
                     to justify the target sample sizes, despite the discrepancy between the
                     actual take and those targets, coupled with its statement that JARPA II
                     can obtain meaningful scientific results based on the far more limited

                     67

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                     actual take, cast further doubt on the characterization of JARPA II as a
                     programme for purposes of scientific research. This evidence suggests that
                     the target sample sizes are larger than are reasonable in relation to achiev-
                     ing JARPA II’s stated objectives. The fact that the actual take of fin and
                     humpback whales is largely, if not entirely, a function of political and
                     logistical considerations, further weakens the purported relationship
                     between JARPA II’s research objectives and the specific sample size tar-
                     gets for each species — in particular, the decision to engage in the lethal
                     sampling of minke whales on a relatively large scale.

                       (c) Additional aspects of the design and implementation of JARPA II
                       213. The Court now turns to several additional aspects of JARPA II to
                     which the Parties called attention.
                          (i) Open‑ended time frame
                        214. Japan asserts that “JARPA II is a long‑term research programme
                     and has no specified termination date because its primary objective (i.e.,
                     monitoring the Antarctic ecosystem) requires a continuing programme of
                     research”. The programme is organized into six‑year “research phases”
                     and “a review will be held and revisions made to the programme if
                     required” after each such period. The first review by the Scientific Com-
                     mittee is scheduled to take place in 2014 (see paragraph 119 above).
                     According to Japan, Article VIII, paragraph 4, of the Convention con-
                     templates such open‑ended research when it states that “continuous col-
                     lection and analysis of biological data . . . are indispensable to sound and
                     constructive management of the whale fisheries”.

                        215. Australia draws two conclusions from the absence of any speci-
                     fied termination date in JARPA II. First, Australia contends that this
                     demonstrates that the design of JARPA II is geared towards the perpetu-
                     ation of whaling by any means until the commercial whaling moratorium
                     is lifted. Secondly, Australia maintains that the open‑ended nature of
                     JARPA II precludes a meaningful assessment of whether it has achieved
                     its research objectives, distorts the process of sample size selection, and
                     therefore renders the design of JARPA II unscientific.
                        216. The Court notes the open‑ended time frame of JARPA II and
                     observes that with regard to a programme for purposes of scientific
                     research, as Annex P indicates, a “time frame with intermediary targets”
                     would have been more appropriate.
                          (ii) Scientific output of JARPA II to date
                       217. Japan maintains that, prior to the periodic review of JARPA II,
                     no meaningful evaluation of JARPA II’s scientific output can be made.

                     68

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                     Japan does assert, however, that the Scientific Committee has recognized
                     the value of data derived from JARPA II, including genetic data and age
                     data derived from lethal whaling. In addition, the expert called by Japan,
                     Mr. Walløe, testified that in his view JARPA II has already provided
                     valuable information relating to the RMP and the Antarctic ecosystem.

                        218. Australia acknowledges that JARPA II has produced some results
                     in the form of data that has been considered by the Scientific Committee.
                     The Parties disagree about this output, however, in the sense that Austra-
                     lia argues that the data obtained from lethal sampling and provided to
                     the Scientific Committee has not proven useful or contributed “significant
                     knowledge” relating to the conservation and management of whales.

                        219. The Court notes that the Research Plan uses a six‑year period to
                     obtain statistically useful information for minke whales and a 12‑year
                     period for the other two species, and that it can be expected that the main
                     scientific output of JARPA II would follow these periods. It nevertheless
                     observes that the first research phase of JARPA II (2005‑2006 to
                     2010‑2011) has already been completed (see paragraph 119 above), but
                     that Japan points to only two peer‑reviewed papers that have resulted
                     from JARPA II to date. These papers do not relate to the JARPA II
                     objectives and rely on data collected from respectively seven and two
                     minke whales caught during the JARPA II feasibility study. While Japan
                     also refers to three presentations made at scientific symposia and to eight
                     papers it has submitted to the Scientific Committee, six of the latter are
                     JARPA II cruise reports, one of the two remaining papers is an evalua-
                     tion of the JARPA II feasibility study and the other relates to the pro-
                     gramme’s non‑lethal photo identification of blue whales. In light of the
                     fact that JARPA II has been going on since 2005 and has involved the
                     killing of about 3,600 minke whales, the scientific output to date appears
                     limited.

                          (iii) Co‑operation with other research institutions
                        220. Australia points to limited co‑operation between JARPA II
                     researchers and other scientists as evidence for its contention that JARPA II
                     is not a programme for purposes of scientific research. One of the experts
                     called by Australia, Mr. Gales, stated that JARPA II “operates in complete
                     isolation” from other Japanese and international research projects concern-
                     ing the Antarctic ecosystem.

                        221. In response to a question put by a Member of the Court, Japan
                     cited co‑operation with other Japanese research institutions. The expert
                     called by Japan, Mr. Walløe, suggested that co‑operation with interna-
                     tional research programmes “would be difficult for personal and political
                     reasons”, given that the use of lethal methods is contentious among scien-
                     tists. He acknowledged that co‑operation with other Japanese research

                     69

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                     292 	           whaling in the antarctic (judgment)

                     institutions, such as the National Institute for Polar Research, could be
                     improved.

                        222. The Court notes that the evidence invoked by Japan to demon-
                     strate co‑operation with Japanese research institutions relates to JARPA,
                     not JARPA II. It observes that some further evidence of co‑operation
                     between JARPA II and other domestic and international research institu-
                     tions could have been expected in light of the programme’s focus on the
                     Antarctic ecosystem and environmental changes in the region.

                       (d) Conclusion regarding the application of Article VIII, paragraph 1,
                            to JARPA II
                       223. In light of the standard of review set forth above (see paragraph 67),
                     and having considered the evidence with regard to the design and imple-
                     mentation of JARPA II and the arguments of the Parties, it is now for the
                     Court to conclude whether the killing, taking and treating of whales under
                     the special permits granted in connection with JARPA II is “for purposes
                     of scientific research” under Article VIII of the Convention.

                       224. The Court finds that the use of lethal sampling per se is not unrea-
                     sonable in relation to the research objectives of JARPA II. However, as
                     compared to JARPA, the scale of lethal sampling in JARPA II is far
                     more extensive with regard to Antarctic minke whales, and the pro-
                     gramme includes the lethal sampling of two additional whale species.
                     Japan states that this expansion is required by the new research objectives
                     of JARPA II, in particular, the objectives relating to ecosystem research
                     and the construction of a model of multi‑species competition. In the view
                     of the Court, however, the target sample sizes in JARPA II are not rea-
                     sonable in relation to achieving the programme’s objectives.

                         225. First, the broad objectives of JARPA and JARPA II overlap
                     c onsiderably. To the extent that the objectives are different, the evidence
                      does not reveal how those differences lead to the considerable increase in
                      the scale of lethal sampling in the JARPA II Research Plan. Secondly, the
                      sample sizes for fin and humpback whales are too small to provide the
                      information that is necessary to pursue the JARPA II research objectives
                      based on Japan’s own calculations, and the programme’s design appears
                      to prevent random sampling of fin whales. Thirdly, the process used to
                      determine the sample size for minke whales lacks transparency, as the
                      experts called by each of the Parties agreed. In particular, the Court notes
                      the absence of complete explanations in the JARPA II Research Plan for
                      the underlying decisions that led to setting the sample size at 850 minke
                      whales (plus or minus 10 per cent) each year. Fourthly, some evidence sug-
                      gests that the programme could have been adjusted to achieve a far smaller
                      sample size, and Japan does not explain why this was not done. The evi-

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                     293 	           whaling in the antarctic (judgment)

                     dence before the Court further suggests that little attention was given to
                     the possibility of using non‑lethal research methods more extensively to
                     achieve the JARPA II objectives and that funding considerations, rather
                     than strictly scientific criteria, played a role in the programme’s design.

                         226. These problems with the design of JARPA II must also be consid-
                     ered in light of its implementation. First, no humpback whales have been
                     taken, and Japan cites non‑scientific reasons for this. Secondly, the take
                     of fin whales is only a small fraction of the number that the JARPA II
                     Research Plan prescribes. Thirdly, the actual take of minke whales has
                     also been far lower than the annual target sample size in all but one sea-
                     son. Despite these gaps between the Research Plan and the programme’s
                     implementation, Japan has maintained its reliance on the JARPA II
                     research objectives — most notably, ecosystem research and the goal of
                     constructing a model of multi‑species competition — to justify both the
                     use and extent of lethal sampling prescribed by the JARPA II Research
                     Plan for all three species. Neither JARPA II’s objectives nor its methods
                     have been revised or adapted to take account of the actual number of
                     whales taken. Nor has Japan explained how those research objectives
                     remain viable given the decision to use six‑year and 12‑year research
                     periods for different species, coupled with the apparent decision to

                     abandon the lethal sampling of humpback whales entirely and to take
                      very few fin whales. Other aspects of JARPA II also cast doubt on its
                      characterization as a programme for purposes of scientific research, such
                      as its open‑ended time frame, its limited scientific output to date, and
                      the absence of  significant co‑operation between JARPA II and other
                      related research projects.

                       227. Taken as a whole, the Court considers that JARPA II involves
                     activities that can broadly be characterized as scientific research (see
                     paragraph 127 above), but that the evidence does not establish that the
                     programme’s design and implementation are reasonable in relation to
                     achieving its stated objectives. The Court concludes that the special per-
                     mits granted by Japan for the killing, taking and treating of whales in
                     connection with JARPA II are not “for purposes of scientific research”
                     pursuant to Article VIII, paragraph 1, of the Convention.

                                    4. Conclusions regarding Alleged Violations
                                                  of the Schedule
                       228. The Court turns next to the implications of the above conclusion,
                     in light of Australia’s contention that Japan has breached three provi-

                     71

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                     294 	            whaling in the antarctic (judgment)

                     sions of the Schedule that set forth restrictions on the killing, taking and
                     treating of whales : the obligation to respect zero catch limits for the kill-
                     ing for commercial purposes of whales from all stocks (para. 10 (e)) ; the
                     factory ship moratorium (para. 10 (d)) ; and the prohibition on commer-
                     cial whaling in the Southern Ocean Sanctuary (para. 7 (b)).

                        229. The Court observes that the precise formulations of the three
                     Schedule provisions invoked by Australia (reproduced in pertinent part
                     below, see paragraphs 231‑233) differ from each other. The “factory ship
                     moratorium” makes no explicit reference to commercial whaling, whereas
                     the requirement to observe zero catch limits and the provision establish-
                     ing the Southern Ocean Sanctuary express their prohibitions with refer-
                     ence to “commercial” whaling. In the view of the Court, despite these
                     differences in wording, the three Schedule provisions are clearly intended
                     to cover all killing, taking and treating of whales that is neither “for pur-
                     poses of scientific research” under Article VIII, paragraph 1, of the Con-
                     vention, nor aboriginal subsistence whaling under paragraph 13 of the
                     Schedule, which is not germane to this case. The reference to “commer-
                     cial” whaling in paragraphs 7 (b) and 10 (e) of the Schedule can be
                     explained by the fact that in nearly all cases this would be the most appro-
                     priate characterization of the whaling activity concerned. The language of
                     the two provisions cannot be taken as implying that there exist categories
                     of whaling which do not come within the provisions of either Article VIII,
                     paragraph 1, of the Convention or paragraph 13 of the Schedule but
                     which nevertheless fall outside the scope of the prohibitions in para-
                     graphs 7 (b) and 10 (e) of the Schedule. Any such interpretation would
                     leave certain undefined categories of whaling activity beyond the scope of
                     the Convention and thus would undermine its object and purpose. It
                     may also be observed that at no point in the present proceedings did the
                     Parties and the intervening State suggest that such additional categories
                     exist.

                       230. The Court therefore proceeds on the basis that whaling that falls
                     outside Article VIII, paragraph 1, other than aboriginal subsistence whal-
                     ing, is subject to the three Schedule provisions invoked by Australia. As
                     this conclusion flows from the interpretation of the Convention and thus
                     applies to any special permit granted for the killing, taking and treating
                     of whales that is not “for purposes of scientific research” in the context of
                     Article VIII, paragraph 1, the Court sees no reason to evaluate the evi-
                     dence in support of the Parties’ competing contentions about whether or
                     not JARPA II has attributes of commercial whaling.

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                       231. The moratorium on commercial whaling, paragraph 10 (e), pro-
                     vides :
                               “Notwithstanding the other provisions of paragraph 10, catch
                          l imits for the killing for commercial purposes of whales from all stocks
                           for the 1986 coastal and the 1985-1986 pelagic seasons and thereafter
                           shall be zero. This provision will be kept under review, based upon
                           the best scientific advice, and by 1990 at the latest the Commission
                           will undertake a comprehensive assessment of the effects of this deci-
                           sion on whale stocks and consider modification of this provision and
                           the establishment of other catch limits.”

                     From 2005 to the present, Japan, through the issuance of JARPA II per-
                     mits, has set catch limits above zero for three species — 850 for minke
                     whales, 50 for fin whales and 50 for humpback whales. As stated above
                     (see paragraphs 229‑230), the Court considers that all whaling that does
                     not fit within Article VIII of the Convention (other than aboriginal sub-
                     sistence whaling) is subject to paragraph 10 (e) of the Schedule. It fol-
                     lows that Japan has not acted in conformity with its obligations under
                     paragraph 10 (e) in each of the years in which it has granted permits
                     for JARPA II (2005 to the present) because those permits have set catch
                     limits higher than zero.

                       232. The factory ship moratorium, paragraph 10 (d), provides :

                            “Notwithstanding the other provisions of paragraph 10, there shall
                          be a moratorium on the taking, killing or treating of whales, except
                          minke whales, by factory ships or whale catchers attached to factory
                          ships. This moratorium applies to sperm whales, killer whales and
                          baleen whales, except minke whales.”

                     The Convention defines a “factory ship” as a ship “in which or on which
                     whales are treated either wholly or in part” and defines a “whale catcher”
                     as a ship “used for the purpose of hunting, taking, towing, holding on to,
                     or scouting for whales” (Art. II, paras. 1 and 3). The vessel Nisshin Maru,
                     which has been used in JARPA II, is a factory ship, and other JARPA II
                     vessels have served as whale catchers. As stated above (see para-
                     graphs 229‑230), the Court considers that all whaling that does not fit
                     within Article VIII of the Convention (other than aboriginal subsistence
                     whaling) is subject to paragraph 10 (d) of the Schedule. It follows that
                     Japan has not acted in conformity with its obligations under para-
                     graph 10 (d) in each of the seasons during which fin whales were taken,
                     killed and treated in JARPA II.

                       233. Paragraph 7 (b), which establishes the Southern Ocean Sanctu-
                     ary, provides in pertinent part : “In accordance with Article V (1) (c) of

                     73

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                     296 	            whaling in the antarctic (judgment)

                     the Convention, commercial whaling, whether by pelagic operations or
                     from land stations, is prohibited in a region designated as the Southern
                     Ocean Sanctuary.”
                        As previously noted, JARPA II operates within the Southern Ocean
                     Sanctuary (see paragraph 120). Paragraph 7 (b) does not apply to minke
                     whales in relation to Japan, as a consequence of Japan’s objection to the
                     paragraph. As stated above (see paragraphs 229‑230), the Court considers
                     that all whaling that does not fit within Article VIII of the Convention
                     (other than aboriginal subsistence whaling) is subject to paragraph 7 (b)
                     of the Schedule. It follows that Japan has not acted in conformity with its
                     obligations under paragraph 7 (b) in each of the seasons of JARPA II
                     during which fin whales have been taken.

                          5. Alleged Non‑Compliance by Japan with Its Obligations under
                                          Paragraph 30 of the Schedule
                        234. In its final submissions, Australia asks the Court to adjudge and
                     declare that Japan violated its obligation to comply with paragraph 30 of
                     the Schedule, which requires Contracting Governments to make pro-
                     posed permits available to the IWC Secretary before they are issued, in
                     sufficient time to permit review and comment by the Scientific Commit-
                     tee. Paragraph 30 states that the proposed permits should specify : the
                     objectives of the research, the number, sex, size and stock of the animals
                     to be taken ; opportunities for participation in the research by scientists of
                     other nations ; and the possible effect on conservation of the stock.

                       235. Although the alleged violation of paragraph 30 was not framed as
                     a submission in Australia’s Memorial, the Memorial addressed the issue,
                     as did Japan’s Counter‑Memorial.

                        236. Australia raises two complaints with regard to paragraph 30 —
                     that Japan has failed to provide proposed permits for review prior to the
                     commencement of each season of JARPA II and that the annual permits
                     do not contain the information required by paragraph 30.
                        237. In response, Japan points out that, prior to the present proceed-
                     ings, Australia had not complained within the Scientific Committee
                     regarding this alleged breach of paragraph 30. Japan explained that the
                     JARPA II Research Plan was submitted two months in advance of the
                     IWC’s June 2005 meeting, prior to the issuance of any special permits for
                     JARPA II, and that the Scientific Committee reviewed and commented
                     on the proposal, in keeping with the then‑applicable Guidelines, reflected
                     in Annex Y. Japan asserts that for a multi‑year programme such as
                     JARPA II, only the initial proposal is reviewed by the Scientific Commit-
                     tee and that “ongoing unchanged proposals that have already been
                     reviewed” are not subject to annual review. According to Japan, this had

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                     297 	           whaling in the antarctic (judgment)

                     been the practice of the Scientific Committee prior to the submission of
                     the JARPA II Research Plan and it has been formalized by Annex P.

                        238. As regards the question of timing, the Court observes that Japan
                     submitted the JARPA II Research Plan for review by the Scientific Com-
                     mittee in advance of granting the first permit for the programme. Subse-
                     quent permits that have been granted on the basis of that proposal must
                     be submitted to the Commission pursuant to Article VIII, paragraph 1, of
                     the Convention, which states that “[e]ach Contracting Government shall
                     report at once to the Commission all such authorizations which it has
                     granted”. Australia does not contest that Japan has done so with regard
                     to each permit that has been granted for JARPA II.
                        239. As regards the substantive requirements of paragraph 30, the
                     Court finds that the JARPA II Research Plan, which constitutes the pro-
                     posal for the grant of special permits, sets forth the information specified
                     by that provision. This was also recognized by the Scientific Committee
                     in 2005 in its review of the JARPA II Research Plan. The lack of detail in
                     the permits themselves is consistent with the fact that the programme is a
                     multi‑year programme, as described in the JARPA II Research Plan.
                     Japan’s approach accords with the practice of the Scientific Committee.

                          240. The Court observes that paragraph 30 and the related Guidelines
                     regarding the submission of proposed permits and the review by the
                     Scientific Committee (currently, Annex P) must be appreciated in light of
                      the duty of co‑operation with the IWC and its Scientific Committee that is
                      incumbent upon all States parties to the Convention, which was recog-
                      nized by both Parties and the intervening State. As has been discussed
                      above (see paragraphs 199‑212), the implementation of JARPA II differs
                      in significant respects from the original design of the programme that was
                      reflected in the JARPA II Research Plan. Under such circumstances, con-
                      sideration by a State party of revising the original design of the programme
                      for review would demonstrate co‑operation by a State party with the
                      Scientific Committee.
                          241. The Court notes that 63 Scientific Committee participants declined
                       to take part in the 2005 review of the JARPA II Research Plan, citing the
                       need for the Scientific Committee to complete its final review of JARPA
                       before the new proposal could be assessed. Those scientists submitted a
                       separate set of comments on the JARPA II Research Plan, which were
                       critical of its stated objectives and methodology, but did not assert that
                       the proposal fell short of Scientific Committee practice under para-
                       graph 30.
                          242. For these reasons, the Court is persuaded that Japan has met the
                       requirements of paragraph 30 as far as JARPA II is concerned.

                                                            *
                                                        *       *

                     75

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                     298 	             whaling in the antarctic (judgment)

                       243. In view of the conclusions that the Court has reached regarding
                     the characterization of JARPA II in relation to Article VIII, as well as
                     the implications of these conclusions for Japan’s obligations under the
                     Schedule, the Court does not need to address other arguments invoked
                     by Australia in support of its claims.

                                                     III. Remedies

                        244. In addition to asking the Court to find that the killing, taking and
                     treating of whales under special permits granted for JARPA II is not for
                     purposes of scientific research within the meaning of Article VIII and that
                     Japan thus has violated three paragraphs of the Schedule, Australia asks
                     the Court to adjudge and declare that Japan shall :

                          “(a) refrain from authorizing or implementing any special permit
                               whaling which is not for purposes of scientific research within the
                               meaning of Article VIII ;
                           (b) cease with immediate effect the implementation of JARPA II ; and

                           (c) revoke any authorization, permit or licence that allows the imple-
                               mentation of JARPA II”.
                        245. The Court observes that JARPA II is an ongoing programme.
                     Under these circumstances, measures that go beyond declaratory relief
                     are warranted. The Court therefore will order that Japan shall revoke any
                     extant authorization, permit or licence to kill, take or treat whales in rela-
                     tion to JARPA II, and refrain from granting any further permits under
                     Article VIII, paragraph 1, of the Convention, in pursuance of that pro-
                     gramme.
                        246. The Court sees no need to order the additional remedy requested
                     by Australia, which would require Japan to refrain from authorizing or
                     implementing any special permit whaling which is not for purposes of
                     scientific research within the meaning of Article VIII. That obligation
                     already applies to all States parties. It is to be expected that Japan will
                     take account of the reasoning and conclusions contained in this Judgment
                     as it evaluates the possibility of granting any future permits under Arti-
                     cle VIII, paragraph 1, of the Convention.

                                                             *
                                                         *       *

                       247. For these reasons,
                       The Court,
                       (1) Unanimously,

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                     299 	           whaling in the antarctic (judgment)

                        Finds that it has jurisdiction to entertain the Application filed by Aus-
                     tralia on 31 May 2010 ;
                       (2) By twelve votes to four,
                       Finds that the special permits granted by Japan in connection with
                     JARPA II do not fall within the provisions of Article VIII, paragraph 1,
                     of the International Convention for the Regulation of Whaling ;

                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Keith,
                          Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebu-
                          tinde, Bhandari ; Judge ad hoc Charlesworth ;
                       against : Judges Owada, Abraham, Bennouna, Yusuf ;
                       (3) By twelve votes to four,
                       Finds that Japan, by granting special permits to kill, take and treat fin,
                     humpback and Antarctic minke whales in pursuance of JARPA II, has
                     not acted in conformity with its obligations under paragraph 10 (e) of
                     the Schedule to the International Convention for the Regulation of
                     Whaling ;

                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Keith,
                          Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebu-
                          tinde, Bhandari ; Judge ad hoc Charlesworth ;
                       against : Judges Owada, Abraham, Bennouna, Yusuf ;
                       (4) By twelve votes to four,
                       Finds that Japan has not acted in conformity with its obligations under
                     paragraph 10 (d) of the Schedule to the International Convention for the
                     Regulation of Whaling in relation to the killing, taking and treating of fin
                     whales in pursuance of JARPA II ;

                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Keith,
                          Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebu-
                          tinde, Bhandari ; Judge ad hoc Charlesworth ;
                       against : Judges Owada, Abraham, Bennouna, Yusuf ;
                       (5) By twelve votes to four,
                       Finds that Japan has not acted in conformity with its obligations under
                     paragraph 7 (b) of the Schedule to the International Convention for the
                     Regulation of Whaling in relation to the killing, taking and treating of fin
                     whales in the “Southern Ocean Sanctuary” in pursuance of JARPA II ;

                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Keith,
                          Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebu-
                          tinde, Bhandari ; Judge ad hoc Charlesworth ;
                       against : Judges Owada, Abraham, Bennouna, Yusuf ;

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                       (6) By thirteen votes to three,
                       Finds that Japan has complied with its obligations under paragraph 30
                     of the Schedule to the International Convention for the Regulation of
                     Whaling with regard to JARPA II ;
                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                          Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf,
                          Greenwood, Xue, Donoghue, Gaja ;
                       against : Judges Sebutinde, Bhandari ; Judge ad hoc Charlesworth ;
                       (7) By twelve votes to four,
                        Decides that Japan shall revoke any extant authorization, permit or
                     licence granted in relation to JARPA II, and refrain from granting any
                     further permits in pursuance of that programme.
                       in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Keith,
                          Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebu-
                          tinde, Bhandari ; Judge ad hoc Charlesworth ;
                       against : Judges Owada, Abraham, Bennouna, Yusuf.

                       Done in English and in French, the English text being authoritative, at
                     the Peace Palace, The Hague, this thirty‑first day of March, two thousand
                     and fourteen, in four copies, one of which will be placed in the archives of
                     the Court and the others transmitted to the Government of Australia, the
                     Government of Japan and the Government of New Zealand, respectively.

                                                                   (Signed) Peter Tomka,
                                                                             President.
                                                               (Signed) Philippe Couvreur,
                                                                             Registrar.

                       Judges Owada and Abraham append dissenting opinions to the Judg-
                     ment of the Court ; Judge Keith appends a declaration to the Judgment
                     of the Court ; Judge Bennouna appends a dissenting opinion to the Judg-
                     ment of the Court ; Judge Cançado Trindade appends a separate opin-
                     ion to the Judgment of the Court ; Judge Yusuf appends a dissenting
                     opinion to the Judgment of the Court ; Judges Greenwood, Xue,
                     Sebutinde and Bhandari append separate opinions to the Judgment of
                     the Court ; Judge ad hoc Charlesworth appends a separate opinion to
                     the Judgment of the Court.

                                                                              (Initialled) P.T.
                                                                             (Initialled) Ph.C.

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