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scientific advantages over another. Rather, the Court seeks here only to evaluate whether the
evidence supports a conclusion that the sample sizes are reasonable in relation to achieving
JARPA II’s stated objectives.
173. The Court begins by considering the way that Japan set the target sample sizes for fin
and humpback whales.
(1) Fin and humpback whales
174. For fin whales and humpback whales, the annual JARPA II lethal sample size is
50 per species. The JARPA II Research Plan states that the same conditions and criteria were used
to set sample sizes for the two species, so the Court considers them together.
175. Sample sizes for both species were calculated on the basis of two “research items”:
apparent pregnancy rate and age at sexual maturity. The JARPA II Research Plan describes these
research items, which according to Japan involve the examination of ear plugs and reproductive
organs, as essential to the objectives of the programme. The Research Plan does not indicate the
reason for using only two parameters to establish the sample sizes for these two species, as
compared to the larger number of parameters used to calculate the minke whale sample size (see
paragraph 182 below). As noted above, however (see paragraphs 165-166), a review of the
JARPA II Research Plan establishes that decisions concerning, for example, the particular rate of
change to detect, among other relevant variables, have a pronounced impact on the resulting sample
size.
176. Although the JARPA II Research Plan sets forth possible sample sizes for fin and
humpback whales that contemplate both six-year and 12-year research periods, the plan explains
that researchers chose to use the 12-year research period for both species. It states that a
six-year period would be “preferable since the research programme will be reviewed every
six years” but would require “large” sample sizes. The Research Plan states that a 12-year period
was thus chosen as a “precautionary approach”. In the oral proceedings, Japan offered an
additional reason for the choice of a 12-year period: that a shorter period is unnecessary for these
two species because implementation of the RMP for fin and humpback whales is not yet under
consideration.
177. The Court does not need to decide whether a particular research period, taken in
isolation, is more or less appropriate for a given species of whales. The selection of a
12-year period for two of three species, however, must be considered in light of other aspects of the
design of JARPA II, including the selection of a six-year research period for detecting various
changes in minke whales. In particular, Japan emphasizes multi-species competition and
ecosystem research as explanations for the minke whale sample size of 850, as well as for
including fin and humpback whales in the programme. JARPA II was designed with a six-year