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orderly development of the whaling industry”. Amendments to the Schedule and recommendations
by the IWC may put an emphasis on one or the other objective pursued by the Convention, but
cannot alter its object and purpose.
57. In order to buttress their arguments concerning the interpretation of Article VIII,
paragraph 1, Australia and Japan have respectively emphasized conservation and sustainable
exploitation as the object and purpose of the Convention in the light of which the provision should
be interpreted. According to Australia, Article VIII, paragraph 1, should be interpreted restrictively
because it allows the taking of whales, thus providing an exception to the general rules of the
Convention which give effect to its object and purpose of conservation. New Zealand also calls for
“a restrictive rather than an expansive interpretation of the conditions in which a Contracting
Government may issue a Special Permit under Article VIII”, in order not to undermine “the system
of collective regulation under the Convention”. This approach is contested by Japan, which argues
in particular that the power to authorize the taking of whales for purposes of scientific research
should be viewed in the context of the freedom to engage in whaling enjoyed by States under
customary international law.
58. Taking into account the preamble and other relevant provisions of the Convention
referred to above, the Court observes that neither a restrictive nor an expansive interpretation of
Article VIII is justified. The Court notes that programmes for purposes of scientific research
should foster scientific knowledge; they may pursue an aim other than either conservation or
sustainable exploitation of whale stocks. This is also reflected in the Guidelines issued by the IWC
for the review of scientific permit proposals by the Scientific Committee. In particular, the
Guidelines initially applicable to JARPA II, Annex Y, referred not only to programmes that
“contribute information essential for rational management of the stock” or those that are relevant
for “conduct[ing] the comprehensive assessment” of the moratorium on commercial whaling, but
also those responding to “other critically important research needs”. The current Guidelines,
Annex P, list three broad categories of objectives. Besides programmes aimed at “improv[ing] the
conservation and management of whale stocks”, they envisage programmes which have as an
objective to “improve the conservation and management of other living marine resources or the
ecosystem of which the whale stocks are an integral part” and those directed at “test[ing]
hypotheses not directly related to the management of living marine resources”.
C. The issuance of special permits
59. Japan notes that, according to Article VIII, paragraph 1, the State of nationality of the
person or entity requesting a special permit for purposes of scientific research is the only State that
is competent under the Convention to issue the permit. According to Japan, that State is in the best
position to evaluate a programme intended for purposes of scientific research submitted by one of
its nationals. In this regard it enjoys discretion, which could be defined as a “margin of
appreciation”. Japan argues that this discretion is emphasized by the part of the paragraph which
specifies that the State of nationality may grant a permit “subject to such restrictions as to number
and subject to such other conditions as the Contracting Government thinks fit”.