This of course is not to say that a Contracting Government has unlimited discretion in granting a special permit as an exercise of its sovereign freedom of action. The prerogative recognized under Article VIII is prescribed as part of the Convention, and more specifically as part of the regulatory régime established by the Convention. While in my view the assessment of scientific merits of research activities such as the JARPA/JARPA II programme, including the scientific assessment of their design and implementation, for achieving the purposes of the Convention is a matter assigned specifically to the organs of the Convention, especially the IWC and its Scientific Committee, there are certain aspects of this process of assessment which are to be subjected to the legal scrutiny of the Court in its exercise of its power of review for the interpretation and application of the Convention.
Within this delimited context, it is the role of the Court to examine from a legal point of view whether the procedures expressly prescribed by the regulatory régime of the Convention (i.e., the procedural requirements for the Contracting Party under Article VIII) are scrupulously observed. Without getting into the task of techno-scientific analysis of what should constitute in substance scientific research and without making the concrete assessment of each aspect of the activities involved a task assigned to the Scientific Committee the Court can also review whether the activities in question can be regarded as meeting the generally accepted notion of “scientific research” (the substantive requirement for the Contracting Party under Article VIII). This process involves the determination of the standard of review to be applied by the Court.