III. Is JARPA II conducted for purp

III. Is JARPA II conducted for purposes other than scientific research?
48. It is stated in the Judgment that:
“Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific research . . . but that the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives. The Court concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not ‘for purposes of scientific research pursuant to Article VIII, paragraph 1, of the Convention’.” (Paragraph 227.)
49. On the basis of that conclusion, it is further stated that: “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” (paragraph 230). These three provisions are paragraph 10 (e) of the Schedule dealing with the obligation to respect zero catch limits for the killing for commercial purposes of whales from all stocks; paragraph 7 (b) of the Schedule on the prohibition on commercial whaling in the Southern Ocean Sanctuary and paragraph 10 (d) of the Schedule on the factory ship moratorium.
50. The activities conducted under JARPA II are, on the one hand, characterized in the Judgment as scientific research, while, on the other hand, it is concluded that the special permits granted by Japan for JARPA II are not “for purposes of scientific research”. This is very unpersuasive for the following reasons.
51. First, the distinction made in the Judgment between a programme that involves “scientific research” and a programme “for purposes of scientific research” is rather artificial and unsubstantiated (paragraph 67), particularly in view of the fact that the term “scientific research” is not defined in the Judgment. It is like saying: “I know how to identify the activities undertaken for the purpose of the ‘term X’, but I do not know how to define the term itself”. It also gives the impression that serendipity was at work here and that JARPA II, though not designed for purposes of scientific research, accidently stumbled into scientific research activities.
52. Secondly, to the extent that it is not clearly proved that a programme which involves scientific research activities has as its preponderant purpose commercial whaling, and consequently the scientific activities are incidental to the commercial whaling, as provided in Article VIII, paragraph 4, of the Convention, such a programme cannot be deemed not to be for purposes of scientific research.
53. Thirdly, the Court’s conclusion that JARPA II is not for purposes of scientific research is also unpersuasive in light of the indisputable evidence on the recognition by the Scientific Committee of the IWC of the generation by JARPA II of data which is useful to the work of the Scientific Committee, on the use by JARPA II of non-lethal methods which are uncharacteristic of commercial whaling, on the presence of scientists on vessels, and on the continuing review and commentary on JARPA II by the Scientific Committee. In its 2012 Report, the Committee specifically recommended the use of data arising, inter alia, from both JARPA and JARPA II for