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kill, take and treat whales for purposes of scientific research — Existence and limits of a State
party’s discretion under Article VIII — Standard of review to be applied by the Court when
reviewing special permits granted under Article VIII — Whether programme involves scientific
research — Whether, in the use of lethal methods, the programme’s design and implementation are
reasonable in relation to achieving its stated objectives — Objective character of the standard of
review — The Court not called upon to resolve matters of scientific or whaling policy — The
Court’s task only to ascertain whether special permits granted in relation to JARPA II fall within
scope of Article VIII, paragraph 1 — Meaning of the phrase “for purposes of scientific research”
in Article VIII, paragraph 1 — Meaning of the terms “scientific research” and “for purposes
of” — Term “scientific research” not defined in the Convention — Four criteria for “scientific
research” advanced by Australia — Criteria advanced by Australia not adopted by the Court —
No need for the Court to devise alternative criteria or to offer a general definition of “scientific
research” — Meaning of the term “for purposes of” — Irrelevance of the intentions of individual
government officials — Research objectives alone must be sufficient to justify programme as
designed and implemented.
JARPA II in light of Article VIII of the Convention.
Description of JARPA — Description of JARPA II — Four research objectives identified in
JARPA II Research Plan — No specified termination date stated in Research Plan — Programme
operates in Southern Ocean Sanctuary established in paragraph 7 (b) of the Schedule to the
Convention — Mix of lethal and non-lethal methods indicated in JARPA II Research Plan —
Sample sizes for fin and humpback whales according to Research Plan — Sample size for minke
whales according to Research Plan — No effect on whale stocks according to Research Plan.
Application of standard of review to JARPA II — Japan’s decisions regarding the use of
lethal methods — Non-lethal methods not feasible at least for some of data sought by JARPA II
researchers — No basis to conclude that use of lethal methods is per se unreasonable in context of
JARPA II — Research Plan should have included some analysis of feasibility of non-lethal
methods — No evidence of studies of feasibility or practicability of non-lethal methods — Scale of
use of lethal methods in JARPA II — Comparison of JARPA II sample sizes to JARPA sample
sizes — Similarities in programmes cast doubt on argument that JARPA II objectives call for
increased minke whale sample size — Japan’s decision to proceed with JARPA II sample sizes
prior to final review of JARPA — Five-step process for determination of sample sizes —
Determination of sample sizes for fin and humpback whales — Effect on sample size of using
12-year research period for fin and humpback whales — Sample size for fin and humpback whales
not large enough to produce statistically relevant information on at least one central research