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204. Japan refers in particular to incidents of sabotage during the 2008-2009 season (the
ramming of vessels in February 2009 and the throwing of bottles of acid at Japanese vessels), the
unauthorized boarding of the vessel Shonan-Maru in February 2010, which resulted in the
withdrawal of that vessel from the fleet for the remainder of the 2009-2010 season for crime scene
investigation, and additional harassment during the 2012-2013 season. Japan notes that the IWC
has condemned such violent sabotage activities in a series of resolutions adopted by consensus.
205. Australia takes issue with Japan’s account of the reasons for the gap between target
sample sizes and actual take. Australia does not dispute that the decision to take no humpback
whales was made in response to a request from the Chair of the IWC, but points out that this was a
political decision, not a decision taken for scientific reasons. With respect to fin whales, Australia
emphasizes the undisputed fact that Japan’s vessels are not equipped to catch larger whales. As to
minke whales, Australia points to evidence that, in its view, demonstrates that actual take is a
function of the commercial market for whale meat in Japan, not the factors identified by Japan.
According to Australia, Japan has adjusted the operations of JARPA II in response to lower
demand for whale meat, resulting in shorter seasons and fewer whales being taken. Australia also
invokes press reports of statements by Japanese officials indicating that JARPA II’s research
objectives do not actually require the amount of lethal sampling described in the Research Plan and
can be accomplished with a smaller actual take.
206. Taking into account all the evidence, the Court considers that no single reason can
explain the gap between the target sample sizes and the actual take. As to humpback whales, the
gap results from Japan’s decision to accede to a request from the Chair of the IWC but without
making any consequential changes to the objectives or sample sizes of JARPA II. The shortfall in
fin whales can be attributed, at least in part, to Japan’s selection of vessels, an aspect of the design
of JARPA II criticized by the expert called by Japan (see paragraph 180 above). As to the fire on
board a ship in one season, Japan did not provide information regarding the extent of the damage or
the amount of time during which the vessel was compromised. The Court considers it plausible
that sabotage activities could have contributed to the lower catches of minke whales in certain
seasons, but it is difficult to assess the extent of such a contribution. In this regard, the Court notes
that the actual take of minke whales in the 2006-2007 and 2007-2008 seasons was 505 and 551,
respectively, prior to the regrettable sabotage activities that Japan has brought to the Court’s
attention. In this context, the Court recalls IWC Resolution 2011-2, which was adopted by
consensus. That resolution notes reports of the dangerous actions by the Sea Shepherd
Conservation Society and condemns “any actions that are a risk to human life and property in
relation to the activities of vessels at sea”.
207. The Court turns next to Australia’s contention that the gap between the target sample
sizes and the actual take undermines Japan’s position that JARPA II is a programme for purposes
of scientific research. Australia states that it welcomes the fact that the actual take under JARPA II