58. How can such a conclusion be reconciled with the use of non-lethal methods in the JARPA II programme or with the recognition by the Scientific Committee of the IWC of the usefulness of the data obtained with these methods as described in paragraph 53 above? How does one account for the evidence of the many scientific outputs produced exclusively with the use of data arising from the non-lethal methods employed in JARPA II? This evidence indicates that 100 scientific outputs were produced between 1988 and 2013 exclusively with the data arising from non-lethal methods in JARPA and JARPA II35. It is doubtful that such a scientific output could be produced by a programme of commercial whaling.
59. It is stated in paragraph 230 of the Judgment that: “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”. This statement is, however, contradicted by the distinction made in the Judgment between activities involving scientific research and a programme for purposes of scientific research. Such a distinction could make sense only if it was proved that JARPA II was a commercial whaling programme with incidental collection and analysis of biological data as provided in Article VIII, paragraph 4, of the ICRW. The statement is equally contradicted by the conclusion that JARPA II is in violation of the moratorium on commercial whaling (para. 10 (d) of the Schedule).
IV. Conclusion
60. The evidence before the Court does not support the conclusion that the special permits for JARPA II have been issued for a purpose other than scientific research. Nor does it establish that such special permits do not comply with the requirements and conditions prescribed by the provisions of Article VIII of the ICRW, paragraph 30 of the Schedule and related Guidelines dealing with scientific research programmes. The real issue is whether the evolving regulatory framework of the Convention in setting zero catch limits and establishing the Southern Ocean sanctuary should be taken into account in interpreting Article VIII of the Convention and the legality of the special permits granted by Japan under that provision for purposes of scientific research, and the extent to which Article VIII and the use of lethal methods for purposes of scientific research might have been restricted by the fact that the optimum utilization of whale resources has been set aside as one of the central objectives of the Convention.
61. It is a pity that instead of such a legal assessment, the Court has engaged in an evaluation of the design and implementation of the programme and their reasonableness in relation to its objectives, a task that normally falls within the competence of the Scientific Committee of the IWC, which is scheduled to undertake an overall review of the JARPA II programme in 2014. As a matter of fact, when the Scientific Committee took the view in the past that a permit proposal submitted by a State did not meet its criteria, it specifically recommended that the permits sought should not be issued. This has not been the case with regard to JARPA II, but it shows at least that the Committee’s practice is adequate to the task of evaluating the design and implementation of scientific research programmes under the ICRW and accordingly advising the IWC on that matter.
(Signed) Abdulqawi A. YUSUF.
58. How can such a conclusion be reconciled with the use of non-lethal methods in the JARPA II programme or with the recognition by the Scientific Committee of the IWC of the usefulness of the data obtained with these methods as described in paragraph 53 above? How does one account for the evidence of the many scientific outputs produced exclusively with the use of data arising from the non-lethal methods employed in JARPA II? This evidence indicates that 100 scientific outputs were produced between 1988 and 2013 exclusively with the data arising from non-lethal methods in JARPA and JARPA II35. It is doubtful that such a scientific output could be produced by a programme of commercial whaling.59. It is stated in paragraph 230 of the Judgment that: “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”. This statement is, however, contradicted by the distinction made in the Judgment between activities involving scientific research and a programme for purposes of scientific research. Such a distinction could make sense only if it was proved that JARPA II was a commercial whaling programme with incidental collection and analysis of biological data as provided in Article VIII, paragraph 4, of the ICRW. The statement is equally contradicted by the conclusion that JARPA II is in violation of the moratorium on commercial whaling (para. 10 (d) of the Schedule).IV. Conclusion60. The evidence before the Court does not support the conclusion that the special permits for JARPA II have been issued for a purpose other than scientific research. Nor does it establish that such special permits do not comply with the requirements and conditions prescribed by the provisions of Article VIII of the ICRW, paragraph 30 of the Schedule and related Guidelines dealing with scientific research programmes. The real issue is whether the evolving regulatory framework of the Convention in setting zero catch limits and establishing the Southern Ocean sanctuary should be taken into account in interpreting Article VIII of the Convention and the legality of the special permits granted by Japan under that provision for purposes of scientific research, and the extent to which Article VIII and the use of lethal methods for purposes of scientific research might have been restricted by the fact that the optimum utilization of whale resources has been set aside as one of the central objectives of the Convention.61. It is a pity that instead of such a legal assessment, the Court has engaged in an evaluation of the design and implementation of the programme and their reasonableness in relation to its objectives, a task that normally falls within the competence of the Scientific Committee of the IWC, which is scheduled to undertake an overall review of the JARPA II programme in 2014. As a matter of fact, when the Scientific Committee took the view in the past that a permit proposal submitted by a State did not meet its criteria, it specifically recommended that the permits sought should not be issued. This has not been the case with regard to JARPA II, but it shows at least that the Committee’s practice is adequate to the task of evaluating the design and implementation of scientific research programmes under the ICRW and accordingly advising the IWC on that matter.(Signed) Abdulqawi A. YUSUF.
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