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(iii) Comparison of sample size to actual take
199. There is a significant gap between the JARPA II target sample sizes and the actual
number of whales that have been killed in the implementation of the programme. The Parties
disagree as to the reasons for this gap and the conclusions that the Court should draw from it.
200. The Court recalls that, for both fin whales and humpback whales, the target sample size
is 50 whales, following a two-year feasibility study during which the target for humpback whales
was zero and the target for fin whales was ten.
201. As to actual take, the evidence before the Court indicates that a total of 18 fin whales
have been killed over the first seven seasons of JARPA II, including ten fin whales during the
programme’s first year when the feasibility of taking larger whales was under study. In subsequent
years, zero to three fin whales have been taken annually. No humpback whales have been killed
under JARPA II. Japan recounts that after deciding initially not to sample humpback whales
during the first two years of JARPA II, it “suspended” the sampling of humpback whales as of
2007. The Court observes, however, that the permits issued for JARPA II since 2007 continue to
authorize the take of humpback whales.
202. Notwithstanding the target sample size for minke whales of 850 (plus or minus
10 per cent), the actual take of minke whales under JARPA II has fluctuated from year to year.
During the 2005-2006 season, Japan caught 853 minke whales, a number within the targeted range.
Actual take has fallen short of the JARPA II sample size target in all subsequent years. On
average, approximately 450 minke whales have been killed in each year. The evidence before the
Court indicates that 170 minke whales were killed in the 2010-2011 season and that 103 minke
whales were killed in the 2012-2013 season.
203. As to the reasons for the gap between target sample sizes and actual take, Japan states
that it decided not to take any humpback whales in response to a request by the then-Chair of the
IWC. With respect to fin whales, Japan points to sabotage activities by anti-whaling
non-governmental organizations, noting in particular the Sea Shepherd Conservation Society, and
to the inability of the main JARPA II research vessel, the Nisshin Maru, to pull on board larger
whales. As to minke whales, Japan offers two reasons that actual sample sizes have been smaller
than targets: a fire on board the Nisshin Maru in the 2006-2007 season and the aforementioned
sabotage activities.