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“research phase” after which a review will be held and revisions may be made. It is difficult to see
how there could be a meaningful review of JARPA II in respect of these two critical objectives
after six years if the research period for two of three species is 12 years.
178. Thus, the selection of a 12-year research period for fin whales and humpback whales is
one factor that casts doubt on the centrality of the objectives that Japan highlights to justify the
minke whale sample size of 850 (plus or minus 10 per cent).
179. Another factor casts doubt on whether the design of JARPA II is reasonable in relation
to achieving the programme’s stated objectives. The overall sample sizes selected for fin and
humpback whales 50 whales of each species per year are not large enough to allow for the
measurement of all the trends that the programme seeks to measure. Specifically, the JARPA II
Research Plan states that at least 131 whales of each species should be taken annually to detect a
particular rate of change in age at sexual maturity. The Research Plan does not indicate whether
the researchers decided to accept a lower level of accuracy or instead adjusted the rate of change
that they sought to detect by targeting fewer whales, nor did Japan explain this in the present
proceedings. In light of the calculations of its own scientists, JARPA II does not appear designed
to produce statistically relevant information on at least one central research item to which the
JARPA II Research Plan gives particular importance.
180. The Court also notes that the expert called by Japan, Mr. Walløe, raised concerns about
the fin whale component of JARPA II that go beyond the sample size. Mr. Walløe testified that the
fin whale proposal was “not very well conceived” for two reasons. He stated that random sampling
of fin whales within the JARPA II research area is not possible, first, because the main fin whale
population is beyond the JARPA II research area further to the north and, secondly, because
the JARPA II vessels can only accommodate the lethal take of smaller fin whales (a point also
raised by Australia). The Court recalls that Japan identified random sampling as an element of a
programme for purposes of scientific research.
181. The Court finds that the JARPA II Research Plan overall provides only limited
information regarding the basis for the decisions used to calculate the fin and humpback whale
sample size. These sample sizes were set using a 12-year period, despite the fact that a shorter
six-year period is used to set the minke whale sample size and that JARPA II is to be reviewed
after each six-year research phase. Based on Japan’s own calculations, the sample sizes for fin and
humpback whales are too small to produce statistically useful results. These shortcomings, in