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account whether research objectives can be achieved using non-lethal methods. Japan has accepted
that it is under an obligation to give due regard to such recommendations. Secondly, as noted
above (see paragraphs 80 and 129), Japan states that, for reasons of scientific policy, “[i]t does
not . . . use lethal means more than it considers necessary” and that non-lethal alternatives are not
practical or feasible in all cases. This implies the undertaking of some type of analysis in order to
ascertain that lethal sampling is not being used to a greater extent than is necessary in relation to
achieving a programme’s stated research objectives. Thirdly, the two experts called by Australia
referred to significant advances in a wide range of non-lethal research techniques over the past
20 years and described some of those developments and their potential application with regard to
JARPA II’s stated objectives. It stands to reason that a research proposal that contemplates
extensive lethal sampling would need to analyse the potential applicability of these advances in
relation to a programme’s design.
138. The Court did not hear directly from Japanese scientists involved in designing
JARPA II. During the oral proceedings, however, a Member of the Court asked Japan what
analysis it had conducted of the feasibility of non-lethal methods prior to setting the sample sizes
for each year of JARPA II, and what bearing, if any, such analysis had had on the target sample
sizes. In response, Japan referred to two documents: (1) Annex H to the 1997 interim review of
JARPA by the Scientific Committee and (2) an unpublished paper that Japan submitted to the
Scientific Committee in 2007.
139. The first of these documents is not an analysis of JARPA II and is not a study by Japan.
It is a one-page summary by the Scientific Committee of opposing views within the Committee on
the need to use lethal methods to collect information relating to stock structure. Japan stated that
this document “formed the basis of section IX of the 2005 JARPA II Research Plan”. Section IX,
entitled “Necessity of Lethal Methods”, comprises two short paragraphs that contain no reference
to feasibility studies by Japan or to any consideration by Japan of developments in non-lethal
research methods since the 1997 JARPA review. Japan identified no other analysis that was
included in, or was contemporaneous with, the JARPA II Research Plan.
140. The 2007 document to which Japan refers the Court discusses the necessity of lethal
methods in JARPA, not JARPA II. It states in summary format the authors’ conclusions as to why
certain biological parameters (listed in relation to particular JARPA objectives) required (or did not
require) lethal sampling, without any analysis and without reference to the JARPA II objectives.
141. Thus, there is no evidence of studies of the feasibility or practicability of non-lethal
methods, either in setting the JARPA II sample sizes or in later years in which the programme has