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As previously noted, JARPA II operates within the Southern Ocean Sanctuary (see
paragraph 120). Paragraph 7 (b) does not apply to minke whales in relation to Japan, as a
consequence of Japan’s objection to the paragraph. As stated above (see paragraphs 229-230), the
Court considers that all whaling that does not fit within Article VIII of the Convention (other than
aboriginal subsistence whaling) is subject to paragraph 7 (b) of the Schedule. It follows that Japan
has not acted in conformity with its obligations under paragraph 7 (b) in each of the seasons of
JARPA II during which fin whales have been taken.
5. Alleged non-compliance by Japan with its obligations under
paragraph 30 of the Schedule
234. In its final submissions, Australia asks the Court to adjudge and declare that Japan
violated its obligation to comply with paragraph 30 of the Schedule, which requires Contracting
Governments to make proposed permits available to the IWC Secretary before they are issued, in
sufficient time to permit review and comment by the Scientific Committee. Paragraph 30 states
that the proposed permits should specify: the objectives of the research, the number, sex, size and
stock of the animals to be taken; opportunities for participation in the research by scientists of
other nations; and the possible effect on conservation of the stock.
235. Although the alleged violation of paragraph 30 was not framed as a submission in
Australia’s Memorial, the Memorial addressed the issue, as did Japan’s Counter-Memorial.
236. Australia raises two complaints with regard to paragraph 30 that Japan has failed to
provide proposed permits for review prior to the commencement of each season of JARPA II and
that the annual permits do not contain the information required by paragraph 30.
237. In response, Japan points out that, prior to the present proceedings, Australia had not
complained within the Scientific Committee regarding this alleged breach of paragraph 30. Japan
explained that the JARPA II Research Plan was submitted two months in advance of the IWC’s
June 2005 meeting, prior to the issuance of any special permits for JARPA II, and that the
Scientific Committee reviewed and commented on the proposal, in keeping with the
then-applicable Guidelines, reflected in Annex Y. Japan asserts that for a multi-year programme
such as JARPA II, only the initial proposal is reviewed by the Scientific Committee and that
“ongoing unchanged proposals that have already been reviewed” are not subject to annual review.
According to Japan, this had been the practice of the Scientific Committee prior to the submission
of the JARPA II Research Plan and it has been formalized by Annex P.
238. As regards the question of timing, the Court observes that Japan submitted the
JARPA II Research Plan for review by the Scientific Committee in advance of granting the first
permit for the programme. Subsequent permits that have been granted on the basis of that proposal