catch-at-age based analyses30. In the subsequent Report, reference is made to non-lethal sampling of humpback whales occurring within the JARPA/JARPA II programmes as useful in the assessment of certain breeding stocks of humpback whales31. Similar references were made in this Report to JARPA and JARPA II photographic data concerning blue whales32, and to blubber thickness data arising from lethal sampling in JARPA and JARPA II33.
54. Fourthly, there is no clear evidence to show that the special permits issued by Japan for JARPA II were not for purposes of scientific research, unless the bad faith of Japan is presumed. As correctly stated in the Lac Lanoux case: “there is a general and well-established principle of law according to which bad faith is not presumed”34. In any case, it is not the function of the Court to investigate the motives lying behind Japan’s conduct in granting special permits to JARPA II, as long as those permits are in compliance with Japan’s obligations. It appears, however, that both the review and the conclusions of the Judgment entail a finding of bad faith which is not explicitly expressed, since JARPA II is considered to be in violation of the commercial whaling provisions of the ICRW.
55. Fifthly, there is also no evidence to support the claim that the programme is being carried out for commercial purposes. The term “for purposes of scientific research” does not, under Article VIII of the ICRW, mean that such killing and taking of whales has to be exclusively for purposes of scientific research. Article VIII (2) explicitly requires that whales killed under the special permits should be processed and dealt with as directed by the Government concerned including for commercial purposes. Thus, Article VIII provides for a subsidiary or incidental purpose which may have a commercial character. Of course, the preponderant purpose must be scientific research, but the sale of whale meat in accordance with Article VIII does not deprive a special permit programme of its quality of a programme conducted for purposes of scientific research.
56. Turning finally to the conclusion in the Judgment that the authorization granted to JARPA II is in breach of three provisions of the Schedule (i.e., paras. 7 (b), 10 (d) and 10 (e)), there is, in my view, no legal basis to such a finding unless it could be clearly shown that JARPA II is commercial whaling in disguise, or that its activities are preponderantly of a commercial nature. In order to affirm that a breach of the commercial whaling moratorium or the prohibition of whaling in the Southern Ocean Sanctuary has occurred, it would be necessary to demonstrate that JARPA II is a programme for the purposes of commercial whaling.
57. The word “commercial” in paragraphs 10 (d) and 10 (e) was not defined at the time of adoption of the amendments of the Schedule, nor afterwards. There is no doubt, however, that it refers to whaling for commercial purposes. The Judgment does not characterize JARPA II as commercial whaling, but the conclusion that the programme is in breach of the moratorium on commercial whaling (para. 10 (e)) and the prohibition on commercial whaling in the Southern Ocean Sanctuary (para. 10 (d)) implies that it is conducted for commercial purposes.