26. On account of the developments that have taken place both in the ICRW and in international environmental law in general, the Court should have assessed whether the continued conduct of JARPA II, as a programme that uses lethal methods for purposes of scientific research under Article VIII, constitutes an anomaly, which may frustrate the object and purpose of the Convention in light of the amendments introduced to it in recent years which have resulted in an evolution of the regulatory framework of the Convention. Indeed, the balance between conservation and sustainable exploitation has clearly shifted in the Convention in favour of more conservation and less exploitation. Although JARPA II does not appear to have adverse effects on whale stocks at the moment, such an assessment could have perhaps shed light on whether a programme for purposes of scientific research, such as JARPA II, may still be considered to be consistent with the conservationist approach adopted in the convention or whether this new approach restricts the right to issue permits for scientific research purposes.
27. Although the Judgment recognizes the centrality of the interpretation and application of these provisions in its paragraph 5010, it quickly skates over their analysis to embark in an extremely detailed assessment of “whether the design and implementation of JARPA II are reasonable in relation to achieving the programme’s stated research objectives” (see subtitle B, paragraph 127), which is adopted as the standard of review on whether or not JARPA II is for purposes of scientific research. It bears to be emphasized that neither the design and implementation of scientific research programmes nor their reasonableness in relation to achieving a programme’s stated objectives are mentioned in Article VIII of the ICRW or in the related instruments mentioned above. Nonetheless, they have surprisingly managed to occupy centre stage in the Judgment.
28. The Judgment also recognizes that:
“since Article VIII, paragraph 1, specifies that ‘the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempted from the operation of this Convention’, whaling conducted under a special permit which meets the conditions of Article VIII is not subject to the obligations under the Schedule concerning the moratorium on the catching of whales for commercial purposes, the prohibition of commercial whaling in the Southern Ocean Sanctuary and the moratorium relating to factory ships” (paragraph 55).
However, instead of analysing whether the special permits issued by Japan meet the conditions of Article VIII, the Judgment takes up the examination and application of the extraneous standard of “reasonableness in relation to achieving the stated objectives of the programme” and derives its final conclusions from it. Thus, the law applicable to the subject of the dispute between the Parties, recognized by the Court itself in the Judgment, is set aside in favour of an obscure and debatable standard which cannot be found anywhere in the Convention while the effects of the conservationist approach adopted in the Convention in recent years on the interpretation of the discretionary power granted under Article VIII are ignored.
D. The assessment of the legality of the special permits for JARPA II
29. Is the primary purpose of the special permit issued to JARPA II to undertake scientific research or to facilitate the supply of whale meat to a commercial market? Is there evidence to support that JARPA II was granted special permit for a purpose other than scientific research?
26. On account of the developments that have taken place both in the ICRW and in international environmental law in general, the Court should have assessed whether the continued conduct of JARPA II, as a programme that uses lethal methods for purposes of scientific research under Article VIII, constitutes an anomaly, which may frustrate the object and purpose of the Convention in light of the amendments introduced to it in recent years which have resulted in an evolution of the regulatory framework of the Convention. Indeed, the balance between conservation and sustainable exploitation has clearly shifted in the Convention in favour of more conservation and less exploitation. Although JARPA II does not appear to have adverse effects on whale stocks at the moment, such an assessment could have perhaps shed light on whether a programme for purposes of scientific research, such as JARPA II, may still be considered to be consistent with the conservationist approach adopted in the convention or whether this new approach restricts the right to issue permits for scientific research purposes.
27. Although the Judgment recognizes the centrality of the interpretation and application of these provisions in its paragraph 5010, it quickly skates over their analysis to embark in an extremely detailed assessment of “whether the design and implementation of JARPA II are reasonable in relation to achieving the programme’s stated research objectives” (see subtitle B, paragraph 127), which is adopted as the standard of review on whether or not JARPA II is for purposes of scientific research. It bears to be emphasized that neither the design and implementation of scientific research programmes nor their reasonableness in relation to achieving a programme’s stated objectives are mentioned in Article VIII of the ICRW or in the related instruments mentioned above. Nonetheless, they have surprisingly managed to occupy centre stage in the Judgment.
28. The Judgment also recognizes that:
“since Article VIII, paragraph 1, specifies that ‘the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempted from the operation of this Convention’, whaling conducted under a special permit which meets the conditions of Article VIII is not subject to the obligations under the Schedule concerning the moratorium on the catching of whales for commercial purposes, the prohibition of commercial whaling in the Southern Ocean Sanctuary and the moratorium relating to factory ships” (paragraph 55).
However, instead of analysing whether the special permits issued by Japan meet the conditions of Article VIII, the Judgment takes up the examination and application of the extraneous standard of “reasonableness in relation to achieving the stated objectives of the programme” and derives its final conclusions from it. Thus, the law applicable to the subject of the dispute between the Parties, recognized by the Court itself in the Judgment, is set aside in favour of an obscure and debatable standard which cannot be found anywhere in the Convention while the effects of the conservationist approach adopted in the Convention in recent years on the interpretation of the discretionary power granted under Article VIII are ignored.
D. The assessment of the legality of the special permits for JARPA II
29. Is the primary purpose of the special permit issued to JARPA II to undertake scientific research or to facilitate the supply of whale meat to a commercial market? Is there evidence to support that JARPA II was granted special permit for a purpose other than scientific research?
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