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calculations described in the JARPA II Research Plan lends support to Australia’s contention that a
predetermined overall sample size has dictated the choice of the research period and the rate of
change to be detected, rather than the other way around.
196. Secondly, as noted above (see paragraph 149), Japan justifies the increase in the minke
whale sample size in JARPA II (as compared to the JARPA sample size) by reference to the
research objectives relating to ecosystem research and multi-species competition. However, the
evidence suggests that the programme’s capacity to achieve these objectives has been compromised
because of shortcomings in the programme’s design with respect to fin and humpback whales. As
such, it is difficult to see how these objectives can provide a reasonable basis for the target sample
size for minke whales in JARPA II.
197. In addition, the Court recalls that Japan describes a number of characteristics that, in its
view, distinguish commercial whaling from research whaling. Japan notes, in particular, that
high-value species are taken in commercial whaling, whereas species of both high value and of
less or no commercial value (such as sperm whales) may be taken in research whaling (see
paragraph 89 above). The use of lethal methods in JARPA II focuses almost exclusively on minke
whales. As to the value of that species, the Court takes note of an October 2012 statement by the
Director-General of Japan’s Fisheries Agency. Addressing the Subcommittee of the House of
Representatives Committee on Audit and Oversight of Administration, he stated that minke whale
meat is “prized because it is said to have a very good flavour and aroma when eaten as sashimi and
the like”. Referring to JARPA II, he further stated that “the scientific whaling program in the
Southern Ocean was necessary to achieve a stable supply of minke whale meat”. In light of these
statements, the fact that nearly all lethal sampling under JARPA II concerns minke whales means
that the distinction between high-value and low-value species, advanced by Japan as a basis for
differentiating commercial whaling and whaling for purposes of scientific research, provides no
support for the contention that JARPA II falls into the latter category.
198. Taken together, the evidence relating to the minke whale sample size, like the evidence
for the fin and humpback whale sample sizes, provides scant analysis and justification for the
underlying decisions that generate the overall sample size. For the Court, this raises further
concerns about whether the design of JARPA II is reasonable in relation to achieving its stated
objectives. These concerns must also be considered in light of the implementation of JARPA II,
which the Court turns to in the next section.