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71. In the view of the Court, the two elements of the phrase “for purposes of scientific
research” are cumulative. As a result, even if a whaling programme involves scientific research,
the killing, taking and treating of whales pursuant to such a programme does not fall within
Article VIII unless these activities are “for purposes of” scientific research.
72. The Court first considers the arguments of the Parties and the intervening State regarding
the meaning of the term “scientific research” and then turns to their arguments regarding the
meaning of the term “for purposes of” in the phrase “for purposes of scientific research”.
(a) The term “scientific research”
73. At the outset, the Court notes that the term “scientific research” is not defined in the
Convention.
74. Australia, relying primarily on the views of one of the scientific experts that it called,
Mr. Mangel, maintains that scientific research (in the context of the Convention) has four essential
characteristics: defined and achievable objectives (questions or hypotheses) that aim to contribute
to knowledge important to the conservation and management of stocks; “appropriate methods”,
including the use of lethal methods only where the objectives of the research cannot be achieved by
any other means; peer review; and the avoidance of adverse effects on stock. In support of these
criteria, Australia also draws on resolutions of the Commission and the Guidelines related to the
review of special permits by the Scientific Committee (see paragraph 47 above).
75. Japan does not offer an alternative interpretation of the term “scientific research”, and
stresses that the views of an expert cannot determine the interpretation of a treaty provision. As a
matter of scientific opinion, the expert called by Japan, Mr. Walløe, agreed in certain respects with
the criteria advanced by Mr. Mangel, while differing on certain important details. Japan disputes
the weight that Australia assigns to resolutions of the Commission that were adopted without
Japan’s support, and notes that resolutions are recommendatory in nature.
76. The Court makes the following observations on the criteria advanced by Australia with
regard to the meaning of the term “scientific research”.
77. As to the question whether a testable or defined hypothesis is essential, the Court
observes that the experts called by both Parties agreed that scientific research should proceed on
the basis of particular questions, which could take the form of a hypothesis, although they
disagreed about the level of specificity required of such a hypothesis. In short, the opinions of the
experts reveal some degree of agreement, albeit with important nuances, regarding the role of
hypotheses in scientific research generally.