C. The applicable law
18. Article VIII of the ICRW, which is at the core of the dispute between the Parties, reads as follows:
“1. Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.
2. Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.
3. Each Contracting Government shall transmit to such body as may be designated by the Commission, in so far as practicable, and at intervals of not more than one year, scientific information available to that Government with respect to whales and whaling, including the results of research conducted pursuant to paragraph 1 of this Article and to Article IV.
4. Recognizing that continuous collection and analysis of biological data in connection with the operations of factory ships and land stations are indispensable to sound and constructive management of the whale fisheries, the Contracting Governments will take all practicable measures to obtain such data.”
19. Article VIII constitutes an exception to the regulatory régime established by the Convention for commercial whaling, but it is not, as initially argued by Japan, “outside the scope of the ICRW”. It cannot be outside the scope of the ICRW, because it is an integral part of the Convention, and was included therein to deal with a distinct type of whaling, which may be referred to as “scientific whaling” or whaling for purposes of scientific research. It establishes a system of special permits for this type of whaling, a system that is “exempt from the operation of this Convention” in so far as the killing, taking and treating of whales is carried out “in accordance with the provisions” of Article VIII.
20. The opening words of paragraph 1, i.e., “Notwithstanding anything contained in this Convention any Contracting Government may grant a special permit”, have to be interpreted in the sense of a discretionary power granted under the Convention to States parties to issue a special permit for purposes of scientific research subject to such restrictions and conditions “as the Contracting Government thinks fit”. The discretionary power granted to States parties distinguishes this type of whaling from the commercial whaling regulated in other parts of the Convention for which the Commission has to fix the conditions and restrictions, such as stock status and commercial quotas, in accordance with the schedule annexed to the Convention.
21. The fixing of the number of whales to be taken, the combination of non-lethal methods with the lethal ones permitted by Article VIII and any other conditions rest with the discretion of the Contracting Government issuing the permit. Nonetheless, the killing, taking and treating of whales for which special permits are issued have to be carried out “in accordance with the