32
S. Sakamoto
Regarding Article VIII of ICRW, the ICJ stated, “[t]he Court notes that Article
VIII is an integral part of the Convention. It therefore has to be interpreted in light
of the object and purpose of the Convention, including the Schedule,”
43 then upheld
the claim of New Zealand (intervening in support of Australia) that “[i]t ‘do[es]
not constitute a blanket exemption […],’”
44 and dismissed Japan’s initial claim that
Article VIII was a freestanding article.
45
On the other hand, while the crucial question as to whether the object and the
purpose of the ICRW were cetacean conservation (as Australia claimed) or the
sustainable use of cetacean resources (as Japan claimed) was at issue during the
trial, the ICJ supported neither of the claims by asserting that, “[a]mendments to the
Schedule and recommendations by the International Whaling Commission (IWC)
may put an emphasis on one or the other objective pursued by the Convention, but
cannot alter its object and purpose”
46 and “the Court observes that neither a restrictive nor an expansive interpretation of Article VIII is justified.”
47 This means that
the ICRW objective as to the “orderly development of the whaling industry,” upon
which Japan had insisted, remained intact. The ICJ, as it were, adjudicated while
discerning the limits of interpretative theory.
Moreover, “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,”
48 the Court adopted the position that the purpose
of whaling, be it for scientific research or other purposes, could be objectively
determined.
49
In this case, the Court was of the view that, “the two elements of the phrase
‘for purposes 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.”
50 This two-element argument was the position of Australia as expressed in its Memorial.
51 Thus, regarding the first element
(namely, ‘of scientific research’) the Court stated that it did not “consider it necessary
Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutine, Bhandari, and Judge
ad hoc Charlesworth. Those against were Judges Owada, Abraham, Bennouna, and Yusuf. ICJ,
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31
March 2014, I.C.J. Reports 2014, pp. 298–300, paragraph 247.
43 Ibid., pp. 250–251, paragraph 55.
44 Ibid, p. 250, paragraph 54.
45 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Counter-Memorial of
Japan, p. 324, paragraph 7.8.
46 Judgment, p. 251, paragraph 56.
47 Ibid, p. 252, paragraph 58.
48 Ibid, p. 253, paragraph 61.
49 Ibid, p. 254, paragraph 66.
50 Ibid, p. 255, paragraph 71.
51 Whaling in the Antarctic (Australia v. Japan), Memorial of Australia, Written Proceedings of 9
May 2011, I.C.J. Reports 2011, pp. 155–156, paragraph 4.38.
S. Sakamoto
Regarding Article VIII of ICRW, the ICJ stated, “[t]he Court notes that Article
VIII is an integral part of the Convention. It therefore has to be interpreted in light
of the object and purpose of the Convention, including the Schedule,”
43 then upheld
the claim of New Zealand (intervening in support of Australia) that “[i]t ‘do[es]
not constitute a blanket exemption […],’”
44 and dismissed Japan’s initial claim that
Article VIII was a freestanding article.
45
On the other hand, while the crucial question as to whether the object and the
purpose of the ICRW were cetacean conservation (as Australia claimed) or the
sustainable use of cetacean resources (as Japan claimed) was at issue during the
trial, the ICJ supported neither of the claims by asserting that, “[a]mendments to the
Schedule and recommendations by the International Whaling Commission (IWC)
may put an emphasis on one or the other objective pursued by the Convention, but
cannot alter its object and purpose”
46 and “the Court observes that neither a restrictive nor an expansive interpretation of Article VIII is justified.”
47 This means that
the ICRW objective as to the “orderly development of the whaling industry,” upon
which Japan had insisted, remained intact. The ICJ, as it were, adjudicated while
discerning the limits of interpretative theory.
Moreover, “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,”
48 the Court adopted the position that the purpose
of whaling, be it for scientific research or other purposes, could be objectively
determined.
49
In this case, the Court was of the view that, “the two elements of the phrase
‘for purposes 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.”
50 This two-element argument was the position of Australia as expressed in its Memorial.
51 Thus, regarding the first element
(namely, ‘of scientific research’) the Court stated that it did not “consider it necessary
Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutine, Bhandari, and Judge
ad hoc Charlesworth. Those against were Judges Owada, Abraham, Bennouna, and Yusuf. ICJ,
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31
March 2014, I.C.J. Reports 2014, pp. 298–300, paragraph 247.
43 Ibid., pp. 250–251, paragraph 55.
44 Ibid, p. 250, paragraph 54.
45 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Counter-Memorial of
Japan, p. 324, paragraph 7.8.
46 Judgment, p. 251, paragraph 56.
47 Ibid, p. 252, paragraph 58.
48 Ibid, p. 253, paragraph 61.
49 Ibid, p. 254, paragraph 66.
50 Ibid, p. 255, paragraph 71.
51 Whaling in the Antarctic (Australia v. Japan), Memorial of Australia, Written Proceedings of 9
May 2011, I.C.J. Reports 2011, pp. 155–156, paragraph 4.38.