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183. As depicted in this illustration, the overall sample size falls within a range that
corresponds to what the JARPA II Research Plan sets forth as the minimum requirements for most
of the research that JARPA II is designed to undertake. Japan asserts that for this reason, the
overall annual lethal sample size was set at 850 (plus or minus 10 per cent, which allows for a
maximum of 935 minke whales per year). As noted above (see paragraphs 159 and 169), Japan
considered this number of whales to be sufficient for purposes of research, taking into account the
need to avoid causing harm to the stocks.
184. In contrast, in Australia’s view, Japan started with the goal of establishing a sample size
of approximately 850 minke whales per year and then “retro-fitted” the programme’s design by
selecting values designed to generate sample sizes for particular research items that corresponded
to Japan’s desired overall sample size. Australia emphasizes that the JARPA II Research Plan is
not clear in stating the reasons for the selection of the particular sample size appertaining to each
research item. Australia also notes that different choices as to values for certain variables would
have led to dramatically smaller sample sizes, but that, in general, the JARPA II Research Plan
provides no explanation for the underlying decisions to use values that generate larger sample
sizes. These shortcomings, in Australia’s view, support its conclusion that the minke whale sample
size was set not for purposes of scientific research, but instead to meet Japan’s funding
requirements and commercial objectives.
185. In light of these divergent views, the Court will consider the evidence regarding Japan’s
selection of the various minimum sample sizes that it chose for different individual research items,
which form the basis for the overall sample size for minke whales. As noted above (see
paragraph 172), the purpose of such an inquiry is not to second-guess the scientific judgments
made by individual scientists or by Japan, but rather to examine whether Japan, in light
of JARPA II’s stated research objectives, has demonstrated a reasonable basis for annual sample
sizes pertaining to particular research items, leading to the overall sample size of 850 (plus or
minus 10 per cent) for minke whales.
186. In the JARPA II Research Plan, individual sample size calculations are presented with
respect to each of the items referred to in the above illustration: age at sexual maturity, apparent
pregnancy rate, blubber thickness, pathological monitoring (i.e., monitoring of contaminant levels),
mixing patterns between different stocks, and “DNA mark-recapture”, which Japan describes as a
method for researching population trends.
187. The Court notes at the outset that the JARPA II Research Plan states that for all
parameters, “a sample size needed to detect changes in a six-year period . . . has been adopted as
the pertinent criterion”. The JARPA II Research Plan does not explain the reason for this threshold
decision, but Japan offered some explanations during these proceedings, which are discussed below
(see paragraph 192).