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larger minke whale sample size in JARPA II. Japan does not explain, for example, why it would
not have been sufficient to limit the lethal take of minke whales during the “feasibility” phase of
JARPA II (its first two years) to 440 minke whales, the maximum number of minke whales that
were targeted during the final season of JARPA. Instead, 853 minke whales were taken during the
first year of JARPA II, in addition to ten fin whales. This also meant that JARPA II began using
the higher sample size for minke whales, and similar research methods (e.g., the examination of ear
plugs to obtain age data and the examination of blubber thickness to assess nutritional conditions)
without having yet received the benefit of any feedback from the final review of JARPA by the
Scientific Committee.
156. These weaknesses in Japan’s explanation for the decision to proceed with the JARPA II
sample sizes prior to the final review of JARPA lend support to the view that those sample sizes
and the launch date for JARPA II were not driven by strictly scientific considerations. These
weaknesses also give weight to the contrary theory advanced by Australia that Japan’s priority
was to maintain whaling operations without any pause, just as it had done previously by
commencing JARPA in the first year after the commercial whaling moratorium had come into
effect for it.
(ii) Determination of species-specific sample sizes
157. Bearing in mind these observations regarding Japan’s general explanation for the
difference between the JARPA and JARPA II sample sizes, the Court turns next to the evidence
regarding the way that Japan determined the specific target sample sizes for each of the three
species in JARPA II.
158. As a general matter, Australia asserts that Japan has failed to provide “a coherent
scientific rationale” for the JARPA II sample sizes. One of the experts called by Australia,
Mr. Mangel, took the view that “[i]t is very difficult to understand the statistical basis for setting
the level of lethal take” in JARPA II. He focused in particular on the determination of the
particular sample sizes that would be required to study different parameters, stating that “a range is
given and then a particular number is picked without any explanation for that number”. In
Australia’s view, the JARPA II Research Plan fails adequately to provide the rationales for the
choices made therein and employs inconsistent methodologies. In essence, Australia’s contention
is that Japan decided that it wished to take approximately 850 minke whales for purposes other than
scientific research and then “retro-fitted” individual sample sizes to justify the overall sample size.
159. Japan asserts that, contrary to Australia’s characterization of the programme, the
JARPA II sample sizes “were calculated on the basis of carefully selected parameters, using a
standard scientific formula, whilst also taking into account the potential effects of research on
whale populations”. Japan also argues that the sample sizes are based on “norms used by the
Scientific Committee”, which has never expressed “any specific concern about the JARPA II
sample size”.