be underestimated since they were used by the Scientific Committee in the initial review and commentary on JARPA II and continue to be used by it to ensure its compliance with paragraph 30 of the Schedule to the Convention as well as Article VIII.
37. Japan submitted the JARPA II proposal in March 2005 and furnished the information required by paragraph 30 and Annex Y (now P). The Committee recognized that “[t]he proposal provides the information under paragraph 30 of the Schedule”19. The Committee does not have the power to disallow or authorize a permit, which rests in the discretion of the State party under Article VIII. However, its views and comments are of utmost significance. When the Committee reviews a proposal, the Government concerned must take serious account of the discussions which have taken place, and of the conclusions and recommendations of the Committee. Paragraph 30 also requires that “[p]reliminary results of any research resulting from the permits” should be made available.
38. The evidence before the Court indicates that Japan continues to submit annual cruise reports to the Scientific Committee to share with it the preliminary results of JARPA II and to show the extent to which the recommendations of the Committee have been taken into account20. Thus, there appears to be an ongoing dialogue and co-operation between the Japanese scientists involved in JARPA II and the Scientific Committee. This has recently led the Committee to note in one of its reports that the stock structure model used in JARPA II was “simple and potentially powerful” and that “[a]side from the general relevance of the results to understanding [of] Antarctic minke whale dynamics, it might in the future prove useful in allocating historical catches to stocks”21. Would the Scientific Committee make such favourable comments about JARPA II if it were not for purposes of scientific research?
39. JARPA II is the successor programme to JARPA and although the legality of JARPA is not in issue here, there can be no doubt that the two programmes pursue overlapping objectives as recognized in the Judgment. In this connection, it is important to note that in 2007, when reviewing the results from the JARPA programme, the Review Workshop established by the Scientific Committee reiterated the view already expressed by the Commission in 1997 that some use could be found for the data arising from JARPA:
“The results from the JARPA programme, while not required for management under the RMP, have the potential to improve management of minke whales in the Southern Hemisphere in the following ways: (1) reductions in the current set of plausible scenarios considered in Implementation Simulation Trials; and
(2) identification of new scenarios to which future Implementation Simulation Trials will have to be developed (e.g., the temporal component of stock structure). The results of analyses of JARPA data could be used in this way perhaps to increase the allowed catch of minke whales in the Southern Hemisphere, without increasing depletion risk above the level indicated by the existing Implementation Simulation Trials of the RMP for these minke whales.”22