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Article VIII permits the grant of special permits only to take whales ‘for
purposes of scientific research’. Japan has sought to mystify the determination 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 purposes 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 proportionate 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.”
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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 provided 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 declarations 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 compulsory ipso
facto and without special agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the International 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 declaration.
This declaration is effective immediately.
This declaration does not apply to:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .