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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 provisions of the Schedule that set forth restrictions on the
killing, taking and treating of whales: the obligation to respect zero catch limits for the killing for
commercial purposes of whales from all stocks (para. 10 (e)); the factory ship moratorium
(para. 10 (d)); and the prohibition on commercial 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 establishing the Southern Ocean
Sanctuary express their prohibitions with reference 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 purposes of scientific research”
under Article VIII, paragraph 1, of the Convention, nor aboriginal subsistence whaling under
paragraph 13 of the Schedule, which is not germane to this case. The reference to “commercial”
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 appropriate 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 paragraphs 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 whaling, 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 evidence in support of the Parties’ competing contentions about whether or not
JARPA II has attributes of commercial whaling.