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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
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 Convention, taking account
of subsequent practice of the parties and applicable rules of international law, as
confirmed by supplementary means of interpretation. 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 Permit 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.