The Government of Australia, in its application instituting proceedings, focuses on the Southern Ocean Sanctuary (paragraph 7(b) of the Schedule) and the so-called moratorium of commercial whaling (paragraph 10(e) of the Schedule) claiming that catching of whales under JARPA II is in breach of Japan’s obligations under these two paragraphs. Since paragraphs 7(b) and 10 (e) do not apply to catches for research purposes under Article VIII, such could only be the case if the catch of whales under JARPA II was commercial whaling. In this regard, Australia claims, and Nelissen and van der Velde concur, that the scale of the JARPA II cannot be justified under Article VIII of the ICRW.10
This argument has been made many times less diplomatically as an accusation that the research is “commercial whaling in disguise.” The point here is that scale is not the determinant. Research on one whale and research on 1,000 whales is research. The determinant is the purpose. If it was whaling for commercial purposes, the operations would be focused in the areas of highest whale density and on the largest animals. This is not the case with whaling under Japan’s whale research program, where the research protocol requires that sampling is done along a scientifically derived track line according to standard survey methodology and where the target animals are selected randomly. In addition, the sample size, that is, the number of whales killed, is not an arbitrary number, nor the maximum that would be taken if it were commercial whaling. Rather, it is a scientifically calculated minimum number needed to obtain statistically significant results over a specified period of time. A large sample size is needed when the population being sampled is large. Taking a small number of samples from a large population can only provide qualitative information related to the animals sampled rather than quantitative data on the population.11