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.