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60. According to Australia, while the State of nationality of the requesting entity has been
given the power to authorize whaling for purposes of scientific research under Article VIII, this
does not imply that the authorizing State has the discretion to determine whether a special permit
for the killing, taking and treating of whales falls within the scope of Article VIII, paragraph 1.
The requirements for granting a special permit set out in the Convention provide a standard of an
objective nature to which the State of nationality has to conform. New Zealand also considers that
Article VIII states “an objective requirement”, not “something to be determined by the granting
Contracting Government”.
61. The Court considers that Article VIII gives discretion to a State party to the ICRW to
reject the request for a special permit or to specify the conditions under which a permit will be
granted. However, whether the killing, taking and treating of whales pursuant to a requested
special permit is for purposes of scientific research cannot depend simply on that State’s
perception.
D. The standard of review
62. The Court now turns to the standard that it will apply in reviewing the grant of a special
permit authorizing the killing, taking and treating of whales on the basis of Article VIII,
paragraph 1, of the Convention.
63. Australia maintains that the task before the Court in the present case is to determine
whether Japan’s actions are consistent with the ICRW and the decisions taken under it. According
to Australia, the Court’s power of review should not be limited to scrutiny for good faith, with a
strong presumption in favour of the authorizing State, as this would render the multilateral régime
for the collective management of a common resource established by the ICRW ineffective.
Australia urges the Court to have regard to objective elements in evaluating whether a special
permit has been granted for purposes of scientific research, referring in particular to the “design
and implementation of the whaling programme, as well as any results obtained”.
64. New Zealand maintains that the interpretation and application of Article VIII entail the
“simple question of compliance” by Contracting Governments with their treaty obligations, a
question which is to be decided by the Court. New Zealand also emphasizes objective elements,
stating that the question whether a programme is for purposes of scientific research can be
evaluated with reference to its “methodology, design and characteristics”.
65. Japan accepts that the Court may review the determination by a State party to the ICRW
that the whaling for which a special permit has been granted is “for purposes of scientific
research”. In the course of the written and oral proceedings, Japan emphasized that the Court is