What are the criteria for determining whether a programme is for purposes of scientific research under the ICRW? To answer these questions and others relating to the legality of the special permits issued by Japan in connection with JARPA II, recourse must be had to the applicable law outlined above.
30. An objective test of whether a programme for which a special permit has been issued is “for purposes of scientific research” and is carried out “in accordance with the provisions of Article VIII” is not, as stated in the Judgment, whether the use of lethal sampling is on a larger scale than is reasonable in relation to achieving the programme’s stated objectives, nor whether the sample sizes are reasonable with respect to those objectives. Those are matters on which scientists and the statistical calculations they use for that purpose can differ. They are not criteria established under Article VIII or in any other provisions of the Convention.
31. Likewise, whether or not a programme is for purposes of scientific research cannot be determined on the basis of the reasonableness of the scale of the use of lethal sampling. The killing or taking of even a single whale may be considered illegal today under the provisions of the ICRW unless it is done for purposes of scientific research. Thus, the fact that the sample size of minke whales taken under JARPA II is much larger than that of JARPA makes no difference unless it is established first that both programmes are for purposes of scientific research.
32. As indicated above, the assessment of the legality of the special permits issued for JARPA II should focus first and foremost on the procedural and substantive requirements of Article VIII itself and with those of paragraph 30 of the Schedule. It should also take into account the effect of recent developments in the regulatory framework of the Convention on the interpretation of Article VIII in light of its object and purpose. Did Japan transmit to the Scientific Committee of the IWC, and at intervals of not more than one year, scientific information available to it with respect to whales and whaling, including the results of research conducted, as required by paragraph 3 of Article VIII? Did it submit the proposed permits for review and comment by the Committee, in accordance with paragraph 30 of the Schedule, which was adopted in 1979? To answer these questions, it is important to examine, in addition to the procedural requirements, whether Japan has breached its treaty obligations by the use of lethal methods in JARPA II, by the scale of the sampling size involved, by authorizing JARPA II to offer for sale the by-products of the whales killed or taken in the implementation of the programme.
33. To begin with the procedural requirements, paragraph 30 of the Schedule requires Contracting Governments to “provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them”. It elaborates further on the requirement of
paragraph 3 of Article VIII, identifies the four types of information to be specified in the proposals11 and prescribes that “Proposed permits shall be reviewed and commented on by the Scientific Committee at Annual Meetings when possible . . .” With regard to these requirements, the Court finds that “[a]s regards the substantive requirements of paragraph 30 . . . the JARPA II Research Plan, which constitutes the proposal for the grant of special permits, sets forth the information specified by that provision” (paragraph 239). It then concludes that: “the Court is persuaded that Japan has met the requirements of paragraph 30 as far as JARPA II is concerned” (paragraph 242).
What are the criteria for determining whether a programme is for purposes of scientific research under the ICRW? To answer these questions and others relating to the legality of the special permits issued by Japan in connection with JARPA II, recourse must be had to the applicable law outlined above.
30. An objective test of whether a programme for which a special permit has been issued is “for purposes of scientific research” and is carried out “in accordance with the provisions of Article VIII” is not, as stated in the Judgment, whether the use of lethal sampling is on a larger scale than is reasonable in relation to achieving the programme’s stated objectives, nor whether the sample sizes are reasonable with respect to those objectives. Those are matters on which scientists and the statistical calculations they use for that purpose can differ. They are not criteria established under Article VIII or in any other provisions of the Convention.
31. Likewise, whether or not a programme is for purposes of scientific research cannot be determined on the basis of the reasonableness of the scale of the use of lethal sampling. The killing or taking of even a single whale may be considered illegal today under the provisions of the ICRW unless it is done for purposes of scientific research. Thus, the fact that the sample size of minke whales taken under JARPA II is much larger than that of JARPA makes no difference unless it is established first that both programmes are for purposes of scientific research.
32. As indicated above, the assessment of the legality of the special permits issued for JARPA II should focus first and foremost on the procedural and substantive requirements of Article VIII itself and with those of paragraph 30 of the Schedule. It should also take into account the effect of recent developments in the regulatory framework of the Convention on the interpretation of Article VIII in light of its object and purpose. Did Japan transmit to the Scientific Committee of the IWC, and at intervals of not more than one year, scientific information available to it with respect to whales and whaling, including the results of research conducted, as required by paragraph 3 of Article VIII? Did it submit the proposed permits for review and comment by the Committee, in accordance with paragraph 30 of the Schedule, which was adopted in 1979? To answer these questions, it is important to examine, in addition to the procedural requirements, whether Japan has breached its treaty obligations by the use of lethal methods in JARPA II, by the scale of the sampling size involved, by authorizing JARPA II to offer for sale the by-products of the whales killed or taken in the implementation of the programme.
33. To begin with the procedural requirements, paragraph 30 of the Schedule requires Contracting Governments to “provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them”. It elaborates further on the requirement of
paragraph 3 of Article VIII, identifies the four types of information to be specified in the proposals11 and prescribes that “Proposed permits shall be reviewed and commented on by the Scientific Committee at Annual Meetings when possible . . .” With regard to these requirements, the Court finds that “[a]s regards the substantive requirements of paragraph 30 . . . the JARPA II Research Plan, which constitutes the proposal for the grant of special permits, sets forth the information specified by that provision” (paragraph 239). It then concludes that: “the Court is persuaded that Japan has met the requirements of paragraph 30 as far as JARPA II is concerned” (paragraph 242).
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