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has been smaller than the programme’s target sample sizes. Australia asserts, however, that Japan
has made no effort to explain how this discrepancy affects the JARPA II research objectives and
has not adapted the programme to account for the smaller actual sample size. Japan also has not
explained how the political decision not to take humpback whales, as well as the small number of
fin whales that have been killed, can be reconciled with the emphasis of the JARPA II Research
Plan on the need for the lethal sampling of those two species. Australia asks how a multi-species
competition model can be constructed on the basis of data only from minke whales, if, as stated in
the JARPA II Research Plan, information based on lethal sampling is required from all three
species to construct such a model or to explore the “krill surplus hypothesis”. Australia emphasizes
that Japan has asserted that the information it needs can be obtained only by lethal take but that the
actual take has been entirely different from the sample sizes on which JARPA II was premised.
Citing these factors, Australia describes JARPA II’s multi-species competition model goal as
“illusory”.
208. Japan asserts that the discrepancy between sample size and actual take, at least with
regard to minke whales, likely means that “it will take several additional years of research to
achieve the required sample sizes before the research objectives can be met”. Along these lines,
Japan states that “if we conduct the research over a longer time or are willing to accept a lower
degree of accuracy then a smaller sample size will also give viable results, but it might delay the
ability to detect potentially important changes in a stock’s dynamics”. Japan also takes the position
that the under-take to date of fin and humpback whales “does not preclude existing ecosystem
models . . . from being improved by use of data that JARPA II has collected in respect of these
species by non-lethal means”.
209. The Court observes that, despite the number of years in which the implementation of
JARPA II has differed significantly from the design of the programme, Japan has not made any
changes to the JARPA II objectives and target sample sizes, which are reproduced in the special
permits granted annually. In the Court’s view, two conclusions can be drawn from the evidence
regarding the gap between the target sample sizes and actual take. First, Japan suggests that the
actual take of minke whales does not compromise the programme, because smaller numbers of
minke whales can nonetheless generate useful information, either because the time frame of the
research can be extended or because less accurate results could be accepted. The Court recalls,
however, that the minke whale sample sizes for particular research items were based on a six-year
research period and on levels of accuracy that were not explained in the JARPA II Research Plan or
in these proceedings. Japan’s statement that the programme can achieve scientifically useful
results with a longer research period or a lower level of accuracy thus raises further doubts about
whether the target sample size of 850 whales is reasonable in relation to achieving the stated
objectives of JARPA II. This adds force to Australia’s contention that the target sample size for
minke whales was set for non-scientific reasons.