Whittier Law Review Volume 34 Fall 2012 Number 1 Table of Contents
Copyright 2012 Whittier Law Review, Alana Preston[FN a1], Reprinted by Permission
|Re-Envisioning The Reach of Persecution: Recognizing Refugee Status For The Family Bystander Witness, Ilene Durst||1|
|Religion As Rehabilitation? Reflections On Islam In The Correctional Setting, SpearIt||29|
|The Best Offense Is A Strong Defense: Appreciating The Strength Of Education As The Strongest Alternative To Interventionism, David P. Vincent||55|
|Notes and Comments|
|The Double Edged Sword Of Discrimination: Finding The Truth In The Context Of Free Speech, Jeff Kao||87|
|Eco-Terrorism in the Southern Ocean: A Dangerous Byproduct of the Tangled Web of International Whaling Conventions and Treaties, Alana Preston||117|
|Replacing The Infancy Doctrine Within The Context Of Online Adhesion Contracts, Karen A. Shiffman||141|
Text of Article
The slaughter of whales in the Southern Ocean[FN 1] continues to this day despite laws in nearly every nation and comprehensive international conventions and treaties prohibiting the harvesting of whales for commercial purposes. Japanese whalers, among the biggest perpetrators in the whaling industry, have been harvesting endangered whales in the Southern Ocean under the guise of a research exception loophole granted under the international moratorium on commercial whaling imposed by the International Whaling Commission (“IWC”).[FN 2] The anti-whaling activist group, Sea Shepherd Conservation Society (“Sea Shepherd”), operates in the Southern Ocean by locating Japanese whaling vessels in order to bring an immediate halt to all whaling activities, often employing violent tactics designed to injure whaling vessels and property.[FN 3]
*118 While the Japanese whalers operate under a legal loophole of the IWC, Sea Shepherd also operates under various legal authority, including the United Nations World Charter for Nature (“World Charter”), IWC, the United Nations Convention on the Law of the Sea (“UNCLOS”), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).[FN 4] Compounding the legal confusion issue further, there are numerous domestic laws in most countries that if enforced, would prevent both Japanese whaling and the need for vigilante eco-terrorists like Sea Shepherd.[FN 5] While Sea Shepherd has achieved some success in its mission to stop whaling in the Southern Ocean at whatever great costs,[FN 6] it has been the subject of much criticism for its direct and violent tactics employed against the Japanese whalers.
The multitude of vague international conventions and treaties governing the Southern Ocean have created a tangled and confusing web of authority where both Japanese whalers and Sea Shepherd have arguable claims of operating under legitimate legal mandates. Instead of the individual countries enforcing domestic laws that would prevent the Japanese from whaling, Sea Shepherd has singularly bore the burden of preventing this harmful practice on its own, creating a tense situation in the Southern Ocean under a tangled web of conflicting legal authority.[FN 7] Proper enforcement of international conventions and treaties should ultimately be the responsibility of individual countries and international governing bodies so private entities, like Sea Shepherd, will not have to bear this burden alone. However, because of the confusion, nations are unlikely to step up and sift through the tangled web of international conventions and treaties. If powerful nations, like the United States and Australia, step up and enforce domestic conservation laws and trade sanctions, non-violent pressure would be applied to the Japanese whalers and would eventually stop *119 whaling campaigns and eliminate the harmful eco-terrorism in the Southern Ocean.
II. Whaling: A Historical Perspective
People have been hunting whales for centuries.[FN 8] The Japanese claim to have started whaling as early as the Twelfth century.[FN 9] However, Japan did not start organized commercial whaling, until 1868.[FN 10] “In the Eighteenth and Nineteenth centuries, the meat, baleen, bones, blubber and oil” of whales were used[FN 11] to make anything from clothing to tools.[FN 12] Over the years, the number of whalers increased and whaling techniques modernized and improved, thus drastically slashing the whale populations to dangerously low levels.[FN 13]
By the 1930s, whale stocks were drastically depleted because of unregulated hunting.[FN 14] During this time the Japanese government began to subsidize its modern whaling fleet and whaling grew extensively as a result.[FN 15] Soon thereafter, production of whale products and the profitability of the whaling business declined.[FN 16] Suddenly, there became a need for international whaling regulations that lead to the creation of the IWC in 1946.[FN 17] By the 1970s, commercial whaling was looked at with public disgust in many nations, including the United States.[FN 18] During this time, environmentalist organizations, such as Greenpeace, became more prevalent.[FN 19] These organizations employed conventional, non-violent protest methods to garner support and *120 influence the end of whaling.[FN 20] By 1972, Congress had passed the Marine Mammal Protection Act (“MMPA”), creating a moratorium on the taking and importing of any marine mammal or marine mammal products.[FN 21] Congress justified the MMPA stating “marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic . . . they should be protected and encouraged to develop to the greatest extent feasible.”[FN 22] Congress likely enacted the MMPA on moral grounds rather than for economic reasons.[FN 23]
Whaling regulations hit an apex in 1982 when the IWC formally adopted a moratorium on all commercial whaling after years of failed attempts.[FN 24] Today, Japan continues to whale despite the existing IWC moratorium because it has obtained a research exception permit to kill whales for scientific research purposes.[FN 25] According to the most recent estimates, the sale of whale meat creates a 61 million dollar profit for the Japanese government.[FN 26] Even though demand for whale meat in Japan has decreased over the years,[FN 27] the Japanese government maintains its whaling traditions. Consequently, Japan's use of this legal loophole has facilitated conservation groups, like Sea Shepherd, to act in a direct and violent manner under its own legal authority.
III. Sea Shepherd Conservation Society
In the early 1970s, Paul Watson co-founded Greenpeace, an environmental activist group.[FN 28] Watson left Greenpeace to form Sea Shepherd in 1977 when disputes arose about Watson's aggressive *121 approach to environmental activism.[FN 29] Freed from Greenpeace's moderate approach of environmentalism, Watson was able to aggressively pursue anti-whaling campaigns thus, creating the violent and dangerous conditions now existing in the Southern Ocean.
Sea Shepherd's mission statement claims that it “is an international non-profit, marine wildlife conservation organization” and its “mission is to end the destruction of habitat and slaughter of wildlife in the world's oceans in order to conserve and protect ecosystems and species.”[FN 30] Sea Shepherd uses a variety of tactics, often destructive and violent, to achieve its goals, including firing canisters of butyric acid onto the decks of whaling ships, disabling propellers using fouling lines, “nailing shut drains that spill whale blood into the ocean” and ramming of whaling vessels with reinforced beams, which are just a few examples of Sea Shepherd's methods of enforcing anti-whaling laws.[FN 31] More recently, tactics have also included boarding whaling vessels in an attempt to deliver cease and desist letters to whaling vessel captains[FN 32] and to create international incidents.[FN 33] The costs of these eco-terrorist tactics are staggering, both in property damage and in human injury. By intentionally ramming and sinking whaling vessels, damaging propellers and firing canisters of butyric acid onto the decks of vessels, Sea Shepherd has caused hundreds of thousands of dollars in property damage and numerous cases of alleged bodily injury.[FN 34] Sea Shepherd crew members have also been injured *122 while conducting terrorist activities on numerous occasions. Injuries have included hypothermia and broken bones.[FN 35]
While some refer to these intentionally destructive acts as eco- terrorism, Sea Shepherd has garnered significant support from nations and individuals sympathetic to the anti-whaling campaign.[FN 36] They also have many critics that proclaim Sea Shepherd's conduct as nothing more than eco-terrorism.[FN 37] Despite Watson's claim to have sunk at least ten whaling vessels in the past,[FN 38] he has only been convicted on one occasion for attempting to sink a Norwegian whaling vessel and spent a mere eighty days in jail.[FN 39] Watson has neither been acquitted nor has he been held responsible for his actions in all previous documented ramming occasions.[FN 40] Only a handful of Sea Shepherd members have ever been criminally charged for their participation in Sea Shepherd's operations.[FN 41] This general lack of criminal prosecution has created an environment where eco-terrorism can flourish and supporters of Sea Shepherd's mission can point to several sources of law to justify its actions.
Sea Shepherd conducts most of its operations in international waters under the authority of the World Charter.[FN 42] Sea Shepherd specifically cites to section 21 of the World Charter as its authority to operate:
21. States and, to the extent they are able, other public authorities, international organizations, individuals, groups and corporations shall . . .
(c) Implement the applicable international legal provisions for the conservation of nature and the protection of the environment;
*123 (d) Ensure that activities within their jurisdictions or control do not cause damage to the natural systems located within other States or in the areas beyond the limits of national jurisdiction;
(e) Safeguard and conserve nature in areas beyond national jurisdiction.[FN 43]
The World Charter was adopted in 1982 in order to provide “appropriate measures” to protect nature and advance international cooperation.[FN 44] Sea Shepherd views the World Charter as a mandate to carry out direct-action tactics against the whalers that Sea Shepherd claims are hunting illegally.[FN 45] Sea Shepherd's claim of legal authority under the World Charter pits it directly against Japanese whalers' authority under the research exception of the IWC. Sea Shepherd uses the World Charter to justify its violent and often dangerous tactics because the lack of international enforcement of conservation laws and treaties by individual nations has created a vacuum where Sea Shepherd feels obligated to step in.[FN 46] Individual nations have not stepped in to stop Sea Shepherd because many nations simply do not support Japanese whaling, causally supporting Sea Shepherd's mission.[FN 47] This de facto support of Sea Shepherd has sent a dangerous international message that eco-terrorism on the high seas is acceptable.
A. Sea Shepherd: An Eco-Terrorist
Many support Sea Shepherd's actions to enforce the World Charter because other nations have failed to enforce their own conservation laws,[FN 48] but the destructive and violent conflict in the Southern Ocean is undesirable for many apparent reasons. Sea Shepherd would likely be considered an eco-terrorist under most *124 countries' definitions or guidelines.[FN 49] Eco-terrorists are generally motivated by political or ideological opportunities.[FN 50] Eco-terrorism is defined as “any crime committed in the name of saving nature.”[FN 51] This is contrary to the definition of a pirate whose motivation is largely economic.[FN 52] Since Sea Shepherd's goals are not economic in nature, they would likely fall into the eco-terrorist classification.
Sea Shepherd's tactics are specifically designed to harass the Japanese whalers, causing economic and physical harm to property and people.[FN 53] Hundreds of thousands of dollars in property damage and the continued threat to human lives have resulted from Sea Shepherd's intentional sinking of vessels and violent direct-action tactics.[FN 54] A press release issued by the Institute of Cetacean Research on February 18, 2011 demonstrates how Sea Shepherd's tactics rise to the level of eco-terrorism:
[W]ithdrawal of the research activities based on the Second Phase of Japan's Whale Research Program under Special Permit in the Antarctic (JARPAII) for this season, in order to avoid any injury or threat to life of the crew members and property of the fleet caused by the continued illegal attacks and sabotage by Sea Shepherd Conservation Society (SSCS).[FN 55]
Despite Sea Shepherd's eco-terrorist label and the harm to property and human life posed by its activities in the Southern Ocean, international treaties and conventions have done little to create clear and effective guidelines to stop eco-terrorism. Holding Sea Shepherd accountable as an eco-terrorist raises a host of problems that are not easily remediable by current laws.
*125 B. Sea Shepherd's Accountability as an Eco-Terrorist
International multilateral treaties and conventions that define terrorism generally lack the ability to internationally enforce them.[FN 56] Because there is a lack of international enforceability, most terrorists are tried in national courts rather than international tribunals.[FN 57] However, most countries are bound under these multilateral treaties and conventions to prosecute or extradite individuals suspected of terrorist attacks found in their jurisdiction.[FN 58] The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (“SUA”) addresses violent acts at sea.[FN 59] SUA does not define terrorism, but outlines a broad interpretation of “unlawful acts” to establish extraditable offenses.[FN 60]
While SUA does provide a foundation for international cooperation in apprehending, extraditing or prosecuting alleged terrorists, it is rendered ineffective when a state is unwilling to enforce its provisions.[FN 61] The prosecuting provision is not strict and only requires that charges be filed.[FN 62] Furthermore, extradition will only be made possible if the nations involved already have an extradition agreement in place.[FN 63] The Japanese government would argue that nations like the Netherlands and Australia, who harbor Sea Shepherd, have an obligation under SUA to prosecute or extradite Sea Shepherd under appropriate eco-terrorist laws for its harassment of the Japanese whalers.[FN 64] However, countries like Australia have refused to prosecute members of Sea Shepherd under such treaty because they simply do not agree with Japan's whaling practices.[FN 65] The effectiveness of SUA is dependent on nations implementing it in good faith by prosecuting and extraditing terrorists.[FN 66]
*126 SUA is a viable recourse for the Japanese whalers because Sea Shepherd would certainly be considered a marine terrorist under even a general definition of the term terrorist. Japan's primary obstacle is to encourage countries to carry their obligations under SUA to the fullest of faith. The imminent threat and subsequent criminal prosecution under domestic terrorist laws would certainly put tremendous pressure on Sea Shepherd to bring an end to its violent tactics creating a less hostile and dangerous environment in the Southern Ocean. However, good faith enforcement of SUA would only solve half of the problem in the Southern Ocean. While eco-terrorism would be stopped, whaling would be allowed to continue virtually unobstructed by any physical opposition. Enforcement of SUA creates an even more imperative need for individual nations to enforce domestic conservation laws and impose trade sanctions.
IV. International Whaling Conventions and Treaties
The need for international regulations in whaling came about in the early nineteen hundreds as a response to a severe depletion in the world's whale population.[FN 67] In the mid-nineteen hundreds, the evolution of whaling regulation shifted from serving the interests of the whalers to serving the interests of conservation.[FN 68] The International Convention for the Regulation of Whaling (“ICRW”) was the first international entity to tackle the issues of whaling. However, these treaties and conventions have been ineffective at preventing whaling, and have instead created confusing legal standards that justify both Japanese whalers and vigilante eco-terrorists, like Sea Shepherd.[FN 69]
A. The International Whaling Commission
The IWC came into existence in 1946 as the regulatory body of the ICRW.[FN 70] The IWC, at the time, was an agreement among whaling states that served whaling interests.[FN 71] It was not until the world's whale population had substantially depleted[FN 72] that the IWC shifted focus to *127 “proper conservation of whale stocks.”[FN 73] Measures to conserve the whale stock and foster the development of the whaling industry included:
[P]rovid[ing] for the complete protection of certain species; designat[ing] specified areas as whale sanctuaries; set[ting] limits on the numbers and size of whales which may be taken; prescrib[ing] open and closed seasons and areas for whaling; and prohibit[ing] the capture of suckling calves and female whales accompanied by calves.[FN 74]
The IWC's “purpose is to study and investigate whaling practices” and to disburse “information . . . concerning methods of maintaining and increasing” whale populations.[FN 75] There are over seventy-eight nations in the IWC, including Japan, Australia and the United States.[FN 76] The IWC is also responsible for the revision of measures laid down in the Schedule to the Convention that governs international whaling.[FN 77] Amendments are based on the scientific findings of the IWC's scientific committee.[FN 78]
By the 1970s, research showed an alarming decline in whale populations.[FN 79] After years of debate, in 1982 the IWC voted to impose a moratorium on commercial whaling that would go into full effect in 1986.[FN 80] Japan argued against the moratorium stating populations were *128 “plentiful enough to sustain further commercial whaling.”[FN 81] Despite this moratorium on commercial whaling, some IWC member nations, like Japan, continue to whale in a limited capacity under the guise of a scientific research loophole.[FN 82] The IWC's effort to end commercial whaling is rendered ineffective by the Japanese use of the scientific exception loophole, only bolstering Japan's legal claim to whaling in the Southern Ocean.
1. IWC's Scientific Research Exception
The language of the IWC's scientific research exception to the moratorium states that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions . . . as the Contracting Government thinks fit.”[FN 83] Japan, as a member of IWC, may issue permits to its nationals to whale as long as it does so for research or scientific purposes.[FN 84] Japan may set quotas and specify whale types as it sees fit in accordance with the permit.[FN 85] This loophole has created significant international controversy, as this is the Japanese whalers' legal mandate to continue its whaling activities in the Southern Ocean.
Fundamental problems exist in how a nation obtains a research exception permit. Currently, Japan operates under JARPA II[FN 86] which does not require it to provide scientific studies to justify its research or studies showing the results of its research in order to justify the continuation of the program.[FN 87] Japan's justification to the permit lies in the assertion that it is researching whale populations to determine when the species will be viable for the IWC to lift its ban.[FN 88] Essentially, *129 Japanese whalers are killing whales in order to determine when whale populations will be stable enough to continue commercial whaling again despite its adamant belief that whaling is currently sustainable.[FN 89] The Japanese whalers and scientists claim that some of their research involves analyzing ear plugs and stomach contents, which can only be done on a dead whale and not on a live specimen.[FN 90] Anti-whaling advocates and other scientists counter-argue that less lethal means can be utilized for population studies including tissue sampling from live whales and photography.[FN 91] Despite debate on both sides as to whether lethal means can or should be used to research population stocks of whales, the Japanese government alone decides to issue permits to its nationals.[FN 92]
2. Closing the Scientific Research Exception Loophole
An alternative solution to stopping the Japanese whalers is to simply close the research exception loophole in the IWC. Closing the loophole would require a majority vote of IWC members.[FN 93] Enforcing domestic conservation laws and implementing trade sanctions is still the best overall remedy to commercial whaling because closing the research exception loophole would do more harm than good. The IWC allows for nations to file objections to any decision it “considers to seriously affect its national interest, provided it is done within 90 days of notification of the decision.”[FN 94] As a result of a timely objection, the complaining nation would not be bound by such decision.[FN 95] Norway, Peru and the Soviet Union filed formal objections to the amendment that has allowed them to continue to commercially whale despite the moratorium.[FN 96] Japan also filed a timely objection, but later chose to follow the moratorium through the research exception.[FN 97] If the IWC *130 elects to close the loophole, Japan could simply object to the amendment and continue commercial whaling.
3. Japanese Withdrawal from the IWC
Upon the closing of the research exception loophole, Japan may also choose to withdraw from the IWC completely, following the example of Canada who left in 1982 to pursue commercial whaling freely at the onset of the moratorium.[FN 98] If Japan leaves the IWC completely, it will be free to whale according to its own guidelines, in contravention of IWC regulation with no threat of recourse. The IWC is more effective with nations like Japan as members because it can exert some type of theoretical control over its member nations; thus, regulating whaling more evenly and effectively[FN 99] to ensure whale stocks do not deplete to catastrophic levels. International conventions and treaties are notoriously difficult to enforce among the many sovereign nations of the world.[FN 100] In order for any international governing entity to have power in what it seeks to accomplish, it is imperative to have the cooperation of as many nations as possible. If Japan leaves the IWC to continue commercial whaling, it could undermine IWC policies and legitimacy as the international authority on whaling activities.
B. United Nations Convention on the Law of the Seas
UNCLOS was established by the United Nations, in 1982, to provide the “framework for the modern law of the sea and mandates the proper conservation and management of marine resources.”[FN 101] UNCLOS recognizes whales as a “special resource deserving of *131 additional consideration.”[FN 102] Article 65 of UNCLOS is dedicated to the protection of marine mammals in exclusive economic zones.[FN 103]
UNCLOS mandates the cooperation of conservation through appropriate international organization.[FN 104] UNCLOS is often used to validate the IWC's moratorium on commercial whaling.[FN 105] Furthermore, Article 241 provides that “[m]arine scientific research shall not constitute the legal basis for any claim to any part of the marine environment or its resources.”[FN 106] Japanese whalers killing whales under the guise of scientific research is the very antithesis of Articles 65 and 241 and would surely constitute violations. Sea Shepherd relies on these articles to justify its actions in the Southern Ocean against the Japanese whalers deeming the whalers to be acting illegally and in contravention of international law.[FN 107]
C. Convention on International Trade in Endangered Species of Wild Fauna and Flora
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, was formed in 1973 with, among others, an objective to “reduce the over-exploitation of plants and animals and to protect endangered species.”[FN 108] Its aim is to ensure that international trade does not threaten wild animals and plants.[FN 109]
Specifically, CITES prohibits the trade of any whale species.[FN 110] Similar to the IWC's research exception loophole, CITES contains a provision for member nations to make reservations against certain *132 species listings.[FN 111] Japan has made such reservations in regards to certain whale species and is not bound to abstain from trading whale products.[FN 112] Japanese whalers use CITES, much in the same way that they use the IWC's research exception loophole, to continue whaling despite the moratorium prohibiting such activities. These combined authorities pit Japanese whalers against Sea Shepherd's legal authority under the World Charter.
Like many other international bodies, CITES lacks an independent enforcement mechanism.[FN 113] Disputes over CITES policies only weakens the stability of the organization and diminishes its effectiveness because the policies of CITES are dependent on the good faith of member nations to carry them out.[FN 114] Unlike the IWC, CITES was founded with a purpose to conserve and has a more diverse membership base.[FN 115] For these reasons, CITES may be in a better position to influence the Japanese government and other pro-whalers into complying with conservation policies.
The IWC, UNCLOS, CITES and World Charter provisions provide competing regulations that have greatly contributed to the entanglement and confusion of laws governing the Southern Ocean. While UNCLOS does not permit whaling under the guise of research, the IWC does.[FN 116] The World Charter creates a means for individuals to enforce the international laws of conservation,[FN 117] while CITES only prevents a country from selling whale meat and byproducts on the international market.[FN 118] A broad analysis would conclude that both the Japanese whalers and Sea Shepherd have valid legal authority to do what they do. Reconciliation of the multitude of international legal authority would be one of the few ways to remedy this tangled and confusing web of authority that is causing so much turmoil in the Southern Ocean.
*133 V. Promoting the End of Commercial Whaling
The continued proliferation of commercial whaling in the Southern Ocean has necessitated a global concern to end the slaughter of whales. Two solutions have emerged as viable options to end commercial whaling. The first solution is strict international enforcement of domestic conservation laws. In the recent Australian Federal Court case, Humane Society International, Inc. v. Kyodo Senpaku, Ltd. (“Humane Society”), an Australian court successfully prosecuted and enjoined a Japanese whaler under domestic conservation laws.[FN 119] Humane Society is an example of how international enforcement of domestic conservation laws can potentially stop whaling in the Southern Ocean. The second solution is the imposition of trade sanctions on Japan. While riskier politically, trade sanctions have the ability to apply tremendous pressure on the Japanese government to end its support of commercial whaling.[FN 120] Together or independently, these solutions have the capability of ending the slaughter of whales in the Southern Ocean, and thus, stopping the need for eco-terrorist organizations like Sea Shepherd.
A. Enforcement of Domestic Conservation Laws: The Australian Example
In January of 2008, Australia became the first country to hold Japanese whaling in the Southern Ocean illegal.[FN 121] A Federal Australian Court held in Humane Society that Japan's whaling in the Australian Whale Sanctuary was in contravention of the Environment Protection and Biodiversity Conservation Act 1999 (“EPBCA”).[FN 122] The respondents were enjoined from “killing, injuring, taking or interfering with any Antarctic minke whale . . . fin whale . . . or humpback whale . . . in the Australian Whale Sanctuary.”[FN 123]
The two issues on review in Humane Society were whether the EPBCA had been violated and whether Australia could exercise legal *134 authority over the Japanese whaling fleet.[FN 124] As to the first issue, the Japanese whalers were found in clear violation of the EPBCA because the killing of whales in the Australian Whale Sanctuary for any reason is a violation of the act.[FN 125] The second issue however, presented much more debate and uncertainty.
Under the EPBCA, the Australian Whale Sanctuary contains any waters of the sea inside the seaward boundary of the exclusive economic zone (“EEZ”).[FN 126] Australia claims that Antarctica's coastal waters are also part of Australia's EEZ.[FN 127] Australia's widely controversial application of its EEZ is only recognized by a handful of countries, including Norway, Great Britain and New Zealand[FN 128] because traditionally, a nation's EEZ will only extend two hundred nautical miles from its own baseline.[FN 129] Regardless, the Australian Court in Humane Society applied the broad EEZ interpretation to the facts and found against the Japanese whalers for their violations of Australian domestic law.[FN 130] Despite a legal victory for anti-whaling, the injunction has yet to be enforced against the Japanese whalers in violation.[FN 131] Moreover, the Australian government has yet to enforce domestic laws upon Japanese whalers hunting in its EEZ,[FN 132] instead relying on private lawsuits to be brought before Federal Courts, which was the case in Humane Society.[FN 133]
Humane Society is an example of how using domestic laws to prosecute whalers can potentially stop whaling in the Southern Ocean. Australia has taken the trail-blazing route of deciding against Japanese whalers and holding them in violation of conservation laws. If other countries with claims to the Antarctic territory[FN 134] follow suit, a *135 message would be sent to the whalers that if they continue to whale in these waters, they will be prosecuted accordingly. The need for eco-terrorist entities, like Sea Shepherd, would also disappear because the international community would be fulfilling its enforcement role, which Sea Shepherd claims to currently operate under.
A more alarming obstacle presented in Humane Society is the lack of enforcement of the decision.[FN 135] The lack of enforcement in Human Society has rendered the decision virtually ineffective. Enforcing domestic laws and decisions are the responsibility of the nation producing them. Without enforcement, the laws and decisions are merely novel words on paper.
B. Unilateral Trade Sanctions
Unilateral trade sanctions imposed against Japan by IWC and anti-whaling nations may serve as a significant force to urge Japan to follow the IWC's moratorium on commercial whaling and end its whaling practices. As a member of the IWC and a staunch opponent of commercial whaling, the United States plays an important role in the enforcement of IWC regulations.[FN 136] The IWC is a policy-making institution that relies on its member nations to enforce its provisions.[FN 137] Historically, the IWC relied on members' voluntary compliance with its regulations, however the moratorium on commercial whaling has created a need for and a willingness of the United States to unilaterally threaten and impose trade sanctions against offending parties.[FN 138] Trade sanctions may only be successful against Japan if the threats are serious enough to cause economic hardship. The United States is a prime candidate for such threats of sanction because of its hegemonic position as an economic and political giant.[FN 139] Nations with powerful positions in international politics and economics, like the United States, should be threatening sanctions against Japan to stop its whaling practices regardless of whether it supports commercial whaling. Only the end of *136 whaling in the Southern Ocean will bring an end to the eco-terrorism that has plagued the region for years.
The most effective sanctioning power of the United States falls under the Pelly Amendment to the Fisherman's Protective Act of 1967 (“Pelly Amendment”).[FN 140] The Pelly Amendment authorizes the President to direct the Secretary of the Treasury to impose trade sanctions if the Secretary of Commerce determines that a foreign country's acts “diminish the effectiveness of an international fishery convention.”[FN 141] In this case, the international fishery convention is the IWC. However, Pelly Amendment sanctioning power is limited insomuch as it conflicts with the United State's obligations under existing international trade agreements.[FN 142] Examples of such existing obligations are those to the World Trade Organization (“WTO”).[FN 143]
The WTO, to which both the United States and Japan are members,[FN 144] prohibits member states from imposing unilateral trade sanctions on other members.[FN 145] Specifically, the WTO prohibits trade restrictions when the actual products being shipped into the country are not in violation of local health standards.[FN 146] Because whale meat itself is not imported into the United States, imposing trade sanctions under the Pelly Amendment might be in conflict with obligations under the WTO.[FN 147] The only remedy to this problem would be to test imported Japanese products for potential whale byproducts.[FN 148] This process would consume tremendous resources both fiscally and politically and could be deemed harassment, subjecting the United States to possible liability under the WTO.[FN 149]
The United States has only previously threatened to impose trade sanctions on Japan, but has never formally implemented such *137 sanctions.[FN 150] Such threats made by the United States were met with resistance and counter-threats to file a complaint with the WTO.[FN 151] The imposition of trade sanctions by countries like the United States, assuming the restrictions would survive WTO scrutiny, would provide significant means for counties to apply economic pressure to Japan to stop its whaling practices. Trade sanctions have the capability to burden the Japanese economy to the point that it would be forced to stop whaling simply because it would no longer be economically feasible.
Imposing trade sanctions on a nation does have its risks. By implementing trade sanctions, a country runs the risk of increasing tensions in an already discordant international realm.[FN 152] The insurance of further compliance of IWC regulations could be jeopardized by the implementation of crippling trade sanctions because Japan could opt out of the IWC all together and refuse to cooperate with conservation policies.[FN 153] If Japan refuses to comply with conservation policies, it would continue to whale unregulated and eco-terrorism would continue to threaten the lives and property of all parties involved.
Japanese whalers and Sea Shepherd have been engaged in a legal struggle in the Southern Ocean for years. The Japanese whalers claim to be whaling legally under a research exception permit issued by the IWC allowing them to harvest whales despite the moratorium in place.[FN 154] Sea Shepherd operates under an apparent mandate of the World Charter allowing individuals to “[i]mplement the applicable international legal provisions for the conservation of nature and the protection of the environment.”[FN 155] Sea Shepherd is enforcing the conservation laws of various bodies of international law including the IWC, UNCLOS and CITES,[FN 156] all of whom prohibit commercial *138 whaling or the trade of whale byproducts in some capacity.[FN 157] The tangled web of international law surrounding whaling, lack of enforcement and lack of international support, has created a virtually unregulated atmosphere in the Southern Ocean where Japanese whalers may kill whales and Sea Shepherd may harass the whalers.
In order to stop whaling in the Southern Ocean and Sea Shepherd from carrying out its violent actions against the whalers, it is imperative for sovereign nations to enforce their respective conservation laws widely and to the fullest extent they are able to or to impose trade sanctions on Japan. Australia took the first step in applying domestic conservation laws when it enjoined Japanese whalers from killing whales in the Australia EEZ.[FN 158] Actual enforcement of this decision and decisions like this from other countries would pressure the Japanese government to abandon whaling in the Southern Ocean out of fear of prosecution and international backlash. Imposing trade sanctions on Japan is a more extreme, but highly effective tactic, to encourage Japan to comply with anti-whaling laws. Assuming sanctions would stand up to WTO scrutiny, sanctions could have the potential to hurt the Japanese economy to the point of compliance.
Whaling in the Twenty-first century has become morally repugnant to a majority of the world and carries serious concerns for the viability of endangered whale populations. Sea Shepherd has recognized these concerns and operates tirelessly and often violently to address these issues. This burden should not be Sea Shepherd's alone, and it is the responsibility of independent nations and international law- *139 making organizations to enforce conservation laws to stop the horrific practices of whaling in the southern ocean.
[FN 1] See Whale Sanctuaries, International Whaling Commission, http:// www.iwcoffice.org/sanctuaries (last visited Nov. 25, 2012). The Southern Ocean Sanctuary was established by the International Whaling Convention in 1994 and it prohibits commercial whaling of any kind. Id. The sanctuary extends roughly south of the forty degrees latitude mark. Sanctuaries, International Whaling Commission, http://www.environment.gov.au/coasts/publications/pubs/iwc-factsheet-sanctuaries.pdf (last visited Nov. 25, 2012).
[FN 2] International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72, available at http:// treaties.un.org/doc/Publication/UNTS/Volume%20161/v161.pdf [hereinafter ICRW]; Howard Schiffman, The International Whaling Commission: Challenges From Within and Without, 10 ILSA J. Int'l & Comp. L. 367, 371 (2004) (In 1986, the IWC imposed a moratorium on all commercial whaling conducted by member nations notwithstanding valid research exception permits.).
[FN 3] Amanda Caprari, Note, Loveable Pirates? The Legal Implications of the Battle between Environmentalists and Whalers in the Southern Ocean, 42 Conn. L. Rev. 1493, 1495 (2010); The Whales' Navy, Sea Shepherd Conservation Society, http://www.seashepherd.org/whales (last visited Nov. 25, 2012).
[FN 4] See Joseph Roeschke, Comment, Eco-Terrorism and Piracy on the High Seas: Japanese Whaling and the Rights of Private Groups To Enforce International Conservation Law in Neutral Waters, 20 Vill. Envtl. L.J. 99, 101 (2009); International Laws and Charters, Sea Shepherd Conservation Society, http://www.seashepherd.org/who-we-are/laws-and-charters.html (last visited Nov. 25, 2012).
[FN 5] Roeschke, supra note 4, at 101.
[FN 6] The Whales' Navy, supra note 3.
[FN 7] Roeschke, supra note 4, at 130-31.
[FN 8] Sarah Suhre, Comment, Misguided Morality: The Repercussions of the International Whaling Commission's Shift from a Policy of Regulation to One of Preservation, 12 Geo. Int'l Envtl. L. Rev. 305, 305 (1999).
[FN 9] Lisa Kobayashi, Comment, Lifting the International Whaling Commission's Moratorium on Commercial Whaling as the Most Effective Global Regulation of Whaling, 29 Environs Envtl. L. & Pol'y J. 177, 181 (2006).
[FN 10] Roeschke, supra note 4, at 103.
[FN 11] Id. at 102-03.
[FN 12] Kobayashi, supra note 9, at 180-81.
[FN 13] Suhre, supra note 8, at 305.
[FN 14] Kobayashi, supra note 9, at 179.
[FN 15] Roeschke, supra note 4, at 103.
[FN 16] Kobayashi, supra note 9, at 183.
[FN 17] Id. at 179.
[FN 18] Roeschke, supra note 4, at 103.
[FN 19] Id. at 106; Kobayashi, supra note 9, at 196.
[FN 20] Roeschke, supra note 4, at 106.
[FN 21] Marine Mammal Protection Act of 1972, 16 U.S.C. § 1371 (2006) [[hereinafter MMPA].
[FN 22] MMPA, 16 U.S.C. § 1361 (2006).
[FN 23] See Gerry Nagtzaam, The International Whaling Commission and the Elusive Great White Whale of Preservationism, 33 Wm. & Mary Envtl. L. & Pol'y Rev. 375, 412 (2009).
[FN 24] See Suhre, supra note 8, at 310.
[FN 25] Caprari, supra note 3, at 1500.
[FN 26] Andrew Hoek, Sea Shepherd Conservation Society v. Japanese Whalers, the Showdown: Who is the Real Villain?, 3 Stan. J. Animal L. & Pol'y 159, 170 (2010); Roeschke, supra note 4, at 104-05.
[FN 27] Hoek, supra note 26, at 170.
[FN 28] Roeschke, supra note 4, at 106.
[FN 29] Id.
[FN 30] Who We Are, Sea Shepherd Conservation Society, http:// www.seashepherd.org/who-we-are (last visited Nov. 25, 2012).
[FN 31] Roeschke, supra note 4, at 107; accord Caprari, supra note 3, at 1508.
[FN 32] Caprari, supra note 3, at 1508.
[FN 33] Press Release, Sea Shepherd Conservation Society, The Shonan Maru Boarding Incident (Jan. 11, 2012), available at http:// www.seashepherd.org/news-and-media/2012/01/11/the-shonan-maru-2-boarding-incident-1313 (explaining that on January 8, 2012, two Australian nationals associated with Sea Shepherd boarded the Japanese whaling vessel, the Shonan Maru #2, in Australian waters in hopes of creating international attention, embarrassing the Japanese whaling fleet and halting the movement of the Shonan Maru #2 in order to facilitate Sea Shepherd's escape from its tail. This type of boarding is conducted under the cover of dark and it extremely dangerous to all parties involved.).
[FN 34] Caprari, supra note 3, at 1508; Roeschke, supra note 4, at 107; see also Press Release, Institute of Cetacean Research, JARPA II Research Vessels to Return Home (Feb. 18, 2011), available at http:// www.icrwhale.org/pdf/110218ReleaseENG.pdf.
[FN 35] See Caprari, supra note 3, at 1523; Press Release, Sea Shepherd Conservation Society, Three Sea Shepherd Crew Injured in Skirmish with Japanese Harpoon Vessel (Jan. 17, 2012), available at http://www.seashepherd.org/news-and-media/2012/01/17/three-sea-shepherd-crewmembers-injuried-in-skirmish-with-japanese-harpoon-vessel-1319; The History of Sea Shepherd, Sea Shepherd Conservation Society, http://www.seashepherd.org/who-we-are/our-history.html (last visited Nov. 25, 2012).
[FN 36] Roeschke, supra note 4, at 108.
[FN 37] Id. at 107-08.
[FN 38] Id. at 108.
[FN 39] See id. at 107.
[FN 40] See generally The History of Sea Shepherd, supra note 35.
[FN 41] Caprari, supra note 3, at 1509.
[FN 42] Id.; Roeschke, supra note 4, at 108.
[FN 43] World Charter for Nature, G.A. Res. 37/7, U.N. Doc. A/RES/37/7 (Oct. 28, 1982), available at http://www.un.org/documents/ga/res/37/a37r007.htm [[hereinafter World Charter].
[FN 44] Caprari, supra note 3, at 1509-10.
[FN 45] Who We Are, supra note 30.
[FN 46] Caprari, supra note 3, at 1505; Mandate, Sea Shepherd Conservation society, http://www.seashepherd.org/who-we-are/mandate.html (last visited Nov. 25, 2012).
[FN 47] Caprari, supra note 3, at 1519-20.
[FN 48] Roeschke, supra note 4, at 130.
[FN 49] See, e.g., 18 U.S.C. § 2331 (2006); Canada Criminal Code, R.S.C. 1985, c. C-46.
[FN 50] Caprari, supra note 3, at 1515.
[FN 51] Alyson Walker, A Field of Failed Dreams: Problems Passing Effective Ecoterrorism Legislation, 18 Vill. Envtl. L.J. 99, 102 (2007).
[FN 52] Caprari, supra note 3, at 1515.
[FN 53] Id. at 1507-08.
[FN 54] See Press Release, Institute of Cetacean Research, supra note 34; The History of Sea Shepherd, supra note 35.
[FN 55] Press Release, Institute of Cetacean Research, supra note 34.
[FN 56] Caprari, supra note 3, at 1516.
[FN 57] Id.
[FN 58] Id.
[FN 59] Id.
[FN 60] Id. at 1517.
[FN 61] Id. at 1518.
[FN 62] Id.
[FN 63] Id.
[FN 64] See id. at 1525.
[FN 65] Id. at 1519-20.
[FN 66] Id. at 1520.
[FN 67] Suhre, supra note 8, at 305.
[FN 68] Schiffman, supra note 2, at 368.
[FN 69] See Nagtzaam, supra note 23, at 429-30.
[FN 70] Schiffman, supra note 2, at 368.
[FN 71] Id.
[FN 72] Id.
[FN 73] ICRW, supra note 2, 62 Stat. at 1717, 161 U.N.T.S. at 76.
[FN 74] History and Purpose, International Whaling Commission, http:// www.iwcoffice.org/history-and-purpose (last visited Nov. 25, 2012); accord ICRW, supra note 2, 62 Stat. at 1718-19, 1723, 161 U.N.T.S. at 80, 90.
[FN 75] Reuben Ackerman, Note, Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of “Scientific Research,” Culture, and Tradition, 25 B.C. Int'l & Comp. L. Rev. 323, 328 (2002); see also ICRW, supra note 2, 62 Stat. at 1718, 161 U.N.T.S. at 78.
[FN 76] Membership and Contracting Governments, International Whaling Commission, http://www.iwcoffice.org/members (last visited Nov. 25, 2012) (identifying a list of member nations).
[FN 77] ICRW, supra note 2, 62 Stat. at 1718-19, 1723, 161 U.N.T.S. at 80.
[FN 78] Kobayashi, supra note 9, at 192 (“The Scientific Committee is composed of voting members and outside scientific experts who are appointed non-voting advisers.”).
[FN 79] See Caprari, supra note 3, at 1498; Nagztaam, supra note 23, at 408 (The delegations for the United States and the United Kingdom argued, “current assessment[s] of whale stocks [were] so poor that it would be prudent to stop whaling.”).
[FN 80] Schiffman, supra note 2, at 368.
[FN 81] Caprari, supra note 3, at 1498.
[FN 82] Roeschke, supra note 4, at 111.
[FN 83] Caprari, supra note 3, at 1500 (quoting ICRW, supra note 2, 62 Stat. at 1719, 161 U.N.T.S. at 82).
[FN 84] Id.; Scientific Permit Whaling, International Whaling Commission, http://iwcoffice.org/permits.htm (last visited Nov. 25, 2012) [hereinafter Scientific Permit Whaling] (outlining the JARPAII permit to whale in Antarctic waters).
[FN 85] Caprari, supra note 3, at 1500.
[FN 86] Scientific Permit Whaling, supra note 84 (under JARPA II, Japan has issued permits to government-licensed ships to kill 50 fin, 50 humpbacks and 850 minke whales during a season).
[FN 87] Caprari, supra note 3, at 1501.
[FN 88] Id.
[FN 89] Id. at 1498, 1501.
[FN 90] Id. at 1501.
[FN 91] Id.
[FN 92] Id.
[FN 93] IWC Information, International Whaling Commission, http:// archive.iwcoffice.org/commission/iwcmain.htm (last visited Nov. 25, 2012).
[FN 94] Id.
[FN 95] Id.
[FN 96] Caprari, supra note 3, at 1500.
[FN 97] Id.
[FN 98] Nagtzaam, supra note 23, at 417; Status of International Convention for the Regulation of Whaling (Oct. 22, 2011), available at http:// www.iwcoffice.org/index.php?cID=1&cType=document&download=1.
[FN 99] Kobayashi, supra note 9, at 205.
[FN 100] See id. at 205-06.
[FN 101] Schiffman, supra note 2, at 369; see United Nations Convention on the Law of the Seas, Dec. 10, 1982, 1833 U.N.T.S. 397, available at http:// treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf [hereinafter UNCLOS].
[FN 102] Schiffman, supra note 2, at 369.
[FN 103] See UNCLOS, supra note 101, 1833 U.N.T.S. at 423.
[FN 104] Id. (“States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.”).
[FN 105] Howard Schiffman, Scientific Research Whaling in International Law: Objectives and Objections, 8 ILSA J. Int'l & Comp. L. 473, 480 (2002).
[FN 106] Id. (quoting UNCLOS, supra note 101, 1833 U.N.T.S. at 495).
[FN 107] See International Laws and Charters, supra note 4.
[FN 108] Cinnamon Carlarne, Saving the Whales in the New Millennium: International Institutions, Recent Developments and the Future of International Whaling Policies, 24 Va. Envtl. L.J. 1, 22 (2005).
[FN 109] What is CITES, Convention on International Trade in Endangered Species of Wild Fauna and Flora, http://www.cites.org/eng/disc/what.php (last visited Nov. 25, 2012).
[FN 110] Roeschke, supra note 4, at 109.
[FN 111] Carlarne, supra note 108, at 25.
[FN 112] Id.
[FN 113] Id. at 24.
[FN 114] Caprari, supra note 3, at 1520.
[FN 115] Carlarne, supra note 108, at 25.
[FN 116] Caprari, supra note 3, at 1500; UNCLOS, supra note 101, 1833 U.N.T.S. at 495.
[FN 117] See World Charter, supra note 43.
[FN 118] Roeschke, supra note 4, at 109.
[FN 119] Humane Soc'y Int'l, Inc. v. Kyodo Senpaku Kaisha, Ltd. (2008) 165 FCR 510, 512, 525-26 (Austl.), available at http:// www.austlii.edu.au/au/cases/cth/federal_ct/2008/3.html [hereinafter Humane Society].
[FN 120] See Carlarne, supra note 108, at 39-40.
[FN 121] Roeschke, supra note 4, at 113-14.
[FN 122] Humane Society, 165 FCR at 525.
[FN 123] Id. at 525-26.
[FN 124] Roeschke, supra note 4, at 114.
[FN 125] Id.
[FN 126] Humane Society, 165 FCR at 512.
[FN 127] Id. at 516; Roeschke, supra note 4, at 114.
[FN 128] Caprari, supra note 3, at 1504.
[FN 129] Id. at 1503 (Here, the traditional application of EEZ boundaries would apply only to the land surrounding the nation of Australia and would not extend to the territory of Antarctica.).
[FN 130] Humane Society, 165 FCR at 512, 525-26.
[FN 131] Caprari, supra note 3, at 1504-05.
[FN 132] Id. at 1504.
[FN 133] See Humane Society, 165 FCR at 512, 525-26.
[FN 134] Antarctic Treaty art. IV, Dec. 1, 1959, 12 U.S.T. 795-96, 402 U.N.T.S. 72, available at http://treaties.un.org/doc/Publication/UNTS/Volume% 20402/v402.pdf (Argentina, Australia, Chile, France, Great Britain, New Zealand and Norway currently hold some claim over Antarctica.).
[FN 135] Caprari, supra note 3, at 1504-05.
[FN 136] Carlarne, supra note 108, at 37-38.
[FN 137] Id. at 38.
[FN 138] Id.
[FN 139] Id. at 39.
[FN 140] Pelly Amendment to the Fisherman's Protective Act of 1967, 22 U.S.C. § 1978 (2006); Ackerman, supra note 75, at 331.
[FN 141] Carlarne, supra note 110, at 39 (quoting 22 U.S.C. § 1978).
[FN 142] Ackerman, supra note 75, at 331.
[FN 143] Id.
[FN 144] Members and Observers, World Trade Organization, http:// www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Nov. 25, 2012).
[FN 145] Carlarne, supra note 108, at 40.
[FN 146] Ackerman, supra note 75, at 332.
[FN 147] Id.
[FN 148] Id.
[FN 149] Id.
[FN 150] Carlarne, supra note 108, at 40.
[FN 151] Id.
[FN 152] Id. at 41.
[FN 153] See Caprari, supra note 3, at 1500.
[FN 154] Schiffman, supra note 2, at 371.
[FN 155] World Charter supra note 43; Mandate, supra note 46.
[FN 156] International Laws and Charters, supra note 4.
[FN 157] ICRW, supra note 2, 62 Stat. at 1723-24, 161 U.N.T.S. at 90; UNCLOS, supra note 101, 1833 U.N.T.S. at 423; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Preamble, Mar. 3, 1973, 27 U.S.T. 1087, 1090, 993 U.N.T.S. 243, 244-45.
[FN 158] Humane Soc'y Int'l, Inc. v. Kyodo Senpaku, Ltd. (2008) 165 FCR 510, 512, 525-26 (Austl.).
[FN a1] J.D. Candidate 2013, Whittier Law School; B.A. Political Science, California State University, Fullerton, 2010. I dedicate this article to my parents, Jim, Gwenn and to my siblings, Torey, Adam and Candace. I am forever grateful for their unwavering love and support. I would like to thank Dr. Pamela Fiber-Ostrow for inspiring me to pursue a career in law and advocacy. I would also like to thank Jeff, Katie, Celeena, and Michelle for their endless support, encouragement and friendships. Lastly, I would like to thank Whittier Law Review, especially the Editorial Board, for their dedication, diligence and patience throughout the editing process.