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188. The evidence shows that the JARPA II Research Plan lacks transparency in the reasons
for selecting particular sample sizes for individual research items. This is a matter on which the
experts called by the two Parties agreed, as described above (see paragraphs 158-159). With the
exception of one variable (discussed in the next paragraph), the JARPA II Research Plan provides
very limited information regarding the selection of a particular value for a given variable. For
example, in the Court’s view, there is no consistent effort to explain why, for the various research
items relating to the monitoring of biological parameters, JARPA II is designed to detect one
particular rate or degree of change over another that would result in a lower sample size. These
shortcomings of the JARPA II Research Plan have particular prominence in light of the fact that the
particular choices of rate and degree of change consistently lead to a sample size of approximately
850 minke whales per year.
189. An exception to this pattern is arguably the discussion of the sample size applicable to
the study of the age at sexual maturity of minke whales, as to which the JARPA II Research Plan
furnishes some details about the factors that Japan considered in selecting the particular rate of
change to detect. For this research item, the Research Plan also offers an indication of the
relationship between the data sought and the first two JARPA II research objectives. The Court
finds no comparable reasoning given as to the five other research items that were expressly used to
set the overall sample size of 850 whales (i.e., those research items set forth in Figure 5-4 from
Japan’s Counter-Memorial above). This highlights the absence of evidence, at least in the
JARPA II Research Plan, that could support a finding that the sample size for the lethal take of
minke whales, a key component of the design of JARPA II, is reasonable in relation to achieving
the programme’s objectives.
190. The Court also recalls that one of the experts called by Australia, Mr. Mangel, asserted
that nearly the same level of accuracy that JARPA II seeks could be obtained with a smaller lethal
take of minke whales and further posited that a smaller take and higher margin of error might be
acceptable, depending on the hypothesis under study. Japan did not refute this expert opinion.
191. The Court turns next to the evidence regarding Japan’s decision to use a six-year period
to calculate the sample sizes for research items corresponding to minke whales, rather than a
12-year period as was used for fin and humpback whales. That decision has a considerable effect
on sample size because the shorter time-period generally requires a higher figure, as the JARPA II
Research Plan demonstrates (see paragraph 165 above).
192. Japan, in discussing one research item (age at sexual maturity) in the
Counter-Memorial, attributes the use of a six-year period to the need to obtain at least three data
points from each JARPA II research area (since whales are taken from each area in alternating