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seasons), because it would be “highly uncertain” to detect a trend on the basis of only two data
points. Japan also refers to the desirability of detecting change “as promptly as possible”. In the
oral proceedings, Japan offered two different rationales for the six-year period. After initially
suggesting that the six-year period was intended to coincide with JARPA II’s six-year review by
the Scientific Committee, Japan withdrew that explanation and asserted that the six-year period for
minke whales was chosen because it “coincides with the review period for the RMP”. This
corresponds to the explanation given by the expert called by Japan, Mr. Walløe, in his oral
testimony, although Mr. Walløe also described the use of a six-year period to calculate sample
sizes as “arbitrary”.
193. In light of the evidence, the Court has no basis to conclude that a six-year research
period for minke whales is not reasonable in relation to achieving the programme’s objectives.
However, the Court finds it problematic that, first, the JARPA II Research Plan does not explain
the reason for choosing a six-year period for one of the whale species (minke whales) and,
secondly, Japan did not offer a consistent explanation during these proceedings for the decision to
use that research period to calculate the minke whale sample size.
194. Moreover, Japan does not address how disparate research time frames for the three
whale species are compatible with JARPA II’s research objectives relating to ecosystem modelling
and multi-species competition. JARPA II is apparently designed so that statistically useful
information regarding fin and humpback whales will only be available after 12 years of research
(and the evidence indicates that, even after 12 years, sample sizes would be insufficient to be
statistically reliable based on the minimum requirements set forth in the JARPA II Research Plan).
As noted above (see paragraph 181), this casts doubt on whether it will be meaningful to review the
programme in respect of its two primary objectives after six years of operation, which, in turn,
casts doubt on whether the minke whale target sample size is reasonable in relation to achieving the
programme’s objectives.
195. The Court thus identifies two overarching concerns with regard to the minke whale
sample size. First, Figure 5-4 shows that the final sample size of 850 minke whales (plus or minus
10 per cent) falls within a range derived from the individual sample sizes for various research
items, but there is a lack of transparency regarding the decisions made in selecting those individual
sample sizes. The Court notes that a lack of transparency in the JARPA II Research Plan and in
Japan’s subsequent efforts to defend the JARPA II sample size do not necessarily demonstrate that
the decisions made with regard to particular research items lack scientific justification. In the
context of Article VIII, however, the evidence regarding the selection of a minimum sample size
should allow one to understand why that sample size is reasonable in relation to achieving the
programme’s objectives, when compared with other possible sample sizes that would require
killing far fewer whales. The absence of such evidence in connection with most of the sample size