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JARPA II is for purposes of scientific research and thus may be authorized by special permits
granted under Article VIII, paragraph 1, of the Convention. To this end and in light of the
applicable standard of review (see paragraph 67 above), the Court will examine whether the design
and implementation of JARPA II are reasonable in relation to achieving the programme’s stated
research objectives, taking into account the elements identified above (see paragraph 88).
(a) Japan’s decisions regarding the use of lethal methods
128. Lethal methods are central to the design of JARPA II. However, it should be noted that
the Parties disagree as to the reasons for that.
129. Japan states that it does not use lethal methods more than it considers necessary to meet
research objectives and that lethal methods are “indispensable” in JARPA II because the
programme’s first two objectives require data that can only realistically be obtained from internal
organs and stomach contents. Japan accepts that non-lethal biopsies and satellite tagging have been
used for certain larger species of whales but states that these methods are not practical for minke
whales. Japan also points out that, while certain relevant data may be obtainable by non-lethal
means, such data would be of lesser quality or reliability, and, in some cases, would involve
“unrealistic” amounts of time and expense.
130. By contrast, Australia maintains that Japan has an “unbending commitment to lethal
take” and that “JARPA II is premised on the killing of whales”. According to Australia, JARPA II,
like JARPA before it, is “merely a guise” under which to continue commercial whaling. One of the
experts called by Australia, Mr. Mangel, stated that JARPA II “simply assert[s] but [does] not
demonstrate that lethal take is required”. Australia further contends that a variety of non-lethal
research methods, including satellite tagging, biopsy sampling and sighting surveys, are more
effective ways to gather information for whale research and that the available technology has
improved dramatically over the past quarter century since JARPA was first launched.
131. As previously noted, Australia does not challenge the use of lethal research methods
per se. Australia accepts that there may be situations in which research objectives can, in fact,
require lethal methods, a view also taken by the two experts that it called. However, it maintains
that lethal methods must be used in a research programme under Article VIII only when “no other
means are available” and the use of lethal methods is thus “essential” to the stated objectives of a
programme.
132. In support of their respective contentions about the use of lethal methods in JARPA II,
the Parties address three points: first, whether non-lethal methods are feasible as a means to obtain