Japan’s suggestion was also accompanied by certain criteria for determining what the appropriate standard of review would consist of4. Even if the Court wanted to use the standard suggested by Japan, it should have defined the criteria underlying its application by the Court, or otherwise tried to define it.
15. In any case, I am not persuaded that the standard of “reasonableness of the design and implementation of JARPA II in relation to the stated objectives of the programme”, applied by the Court, is grounded in law or in the practice of this Court. The Court used the test of “objective and reasonable” grounds for a decision it was reviewing only once before, in the 2012 Advisory Opinion on the IFAD, where the standard was adopted concerning what was essentially an administrative matter5. There are of course some cases where the Court employed the more general concept of “reasonableness”, but rarely as a standard of review of discretionary acts. For example, in the Barcelona Traction case, the Court held that “in the field of diplomatic protection as in all other fields of international law, it is necessary that the law be applied reasonably”6. But this, as other cases, concerned methods of interpretation7.
16. The only case where a standard of review of reasonableness was referred to is the Elettronica Sicula case, concerning “unreasonable requisitions” of foreign property. Here the Court had to determine whether under the treaty which the Court was interpreting the requisition of certain property by Italian authorities was “arbitrary”. On cue from US counsel, the test of “reasonableness” was used by the Court as one which constituted the opposite of “arbitrariness”8. But this test arose from the terms of the treaty, and was not adopted by the Court on its own.
17. In the present case, the Court should have focused its analysis on the lawful use by Japan of its discretionary power under Article VIII, in light of the object and purpose of the Convention, in issuing a special permit for JARPA II and whether or not Japan has violated or is violating its obligations under the ICRW in authorizing and implementing JARPA II, instead of reviewing the design and implementation of a scientific research programme, which is the task of the Scientific Committee of the IWC. The reasonableness of the design and implementation of JARPA II in relation to achieving its stated objectives is a debatable matter the assessment of which may give rise to genuine differences of opinion among scientists who have to deal with the design and implementation of research plans. This is confirmed by the work of the Scientific Committee of the IWC, where the divergences of opinion on JARPA and JARPA II are often reflected in its reports. It is also confirmed by the views expressed by the experts presented by the Parties during the oral proceedings.