34. These findings of the Court contradict its other conclusions that the special permits granted by Japan in connection with JARPA II are not for purposes of scientific research pursuant to Article VIII, paragraph 1, of the Convention. Compliance with the requirements of paragraph 30 is by itself a significant distinguishing feature of a programme for purposes of scientific research. The JARPA II programme was duly reviewed and commented by the Scientific Committee of the IWC in 2005 in accordance with the Guidelines contained in Annex Y (now Annex P) with regard to its methodology, the effects of catches on the population concerned and the opportunities for participation in the research12. In other instances, when the Scientific Committee took the view that a permit proposal submitted by a State did not meet its criteria, it specifically recommended that the permits sought should not be issued. Indeed, in 1987 the Scientific Committee explicitly recommended that the Commission request the Republic of Korea to refrain from issuing permits until it can show that such permits will not further deplete the stock and that it will materially contribute to the Comprehensive Assessment of this stock13. Similarly, in 1990 with relation to a proposal by the USSR, the Committee explicitly noted that “the proposed investigations on the whales to be caught do not appear to be structured either to provide information essential for rational management of these stocks, or to contribute to the Comprehensive Assessment or other critically important research needs”14. This was not the case with regard to JARPA II despite the fact that 63 out of 195 members of the Scientific Committee declined to participate in the relevant meeting of the Scientific Committee (see paragraph 241 of the Judgment).
35. Moreover, as discussed below in paragraph 53, the Scientific Committee in its Report of 2012 specifically recommended the use of data arising, inter alia, from both JARPA and JARPA II for catch-at-age based analyses for the minke whale population dynamics model it is investigating; while in its 2013 Report it referred 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 whales. If JARPA II were not a programme for purposes of Scientific Research, as the Judgment concludes, would the Scientific Committee of the IWC continue not only to review and comment on it, but also to recommend the use of its data for the advancement of its own work?
36. A second test for assessing whether JARPA II is for purposes of scientific research is whether it satisfies the criteria laid down in the Annex P Guidelines adopted by consensus by the States parties to the Convention in 2006 and revised in 2009. Annex P establishes clear criteria and conditions, which all special permit proposals should meet, and against which they are to be reviewed and commented by the Scientific Committee. Such proposals have to specify the