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(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 submitted 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 “arising out of, concerning, or
relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending
its delimitation”.
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 interpretation 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 characterization 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 maritime 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 precisely, Japan argues that this is irrelevant because the Australian
reservation also includes the waters that are “adjacent” to the area in dispute, the term being
understood broadly by Australia.