Modern whaling is vastly different than it was in the time of Herman Melville’s Moby Dick. No longer does a small group of people take a small vessel to sea with limited weaponry in pursuit of a single whale. Today’s whalers employ advanced weapons systems and massive ships that allow the hunters to store killed whales on board, thus eliminating the need to return to land after each whale is killed. As these technologies and processes became increasingly popular in the early- to mid-20th century, the killing rate increased to the point where it was larger than the natural reproduction rate of the whales, forcing whaling nations to recognize the need to regulate the industry.
In 1946, the world’s whaling nations signed the International Convention for the Regulation of Whaling (ICRW) in an attempt to preserve the whale population for the benefit of the industry. As time passed, though, the killing of whales drew strong criticism from individuals and organizations like Greenpeace, Humane Society International (HSI) and the International Fund for Animal Welfare (IFAW). Greenpeace began its famous anti-whaling campaign in 1975 and introduced millions of people around the world to the whaling industry. Though the campaign was successful according to many measures, the existence of whaling continued. Thus, groups like HSI and IFAW began to work on legal approaches to end whaling.
Almost any conversation today regarding whaling will include some discussion of Australia, a country well-known for its pro-conservation ethos, and Japan, the country that kills hundreds of whales each year in the Southern Ocean under its JARPA II program. Australia’s Whale Protection Act 1980 (WPA) and Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) are both intended to protect whales not only in Australia, but off the coast of the portion of Antarctica that Australia claims as its own. In 2004, HSI sued Japanese whalers in Australia and the Federal Court of Australia ruled that a Japanese whaling company had violated the EPBC Act.
While HSI was working within the Australian national court system, IFAW was developing strategies to be pursued in international courts. To aid its work, IFAW convened a series of panels of international law experts between 2006 and 2009 to develop legal arguments that could be used against Japanese whalers in the Southern Ocean. When the panels completed their work, IFAW shared the conclusions with the Australian public, media, and political officials. These efforts played an important part in Australia’s decision to file suit against Japan at the International Court of Justice (ICJ) in 2010.
At the center of the dispute between the two countries is Article VIII, Paragraph I of the ICRW:
Notwithstanding anything contained in this Convention, 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, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.
Japan’s argument is that this text clearly allows for a country to issue permits authorizing its citizens to kill whales for purposes of scientific research and because Japan’s whaling program in the Southern Ocean is for scientific purposes, there is nothing wrong with its issuance of permits. Australia, on the other hand, argues that Japan’s killing of whales in the Southern Ocean is actually for commercial purposes and Japan labels its current program as scientific whaling only because Japan agreed to a moratorium on commercial whaling passed by whaling countries in the 1980s. That is, because Japan is legally prohibited from killing whales for commercial purposes, Japan is using scientific whaling as a guise under which it can kill Southern Ocean whales, then sell the meat and support the national whaling industry.
The ICJ’s opinion is based on the concept of reasonableness. The Court declares that lethal methods per se are not unreasonable, but the Court states that there are sufficient issues with both the design and the implementation of Japan’s whaling program that the program as a whole cannot be considered reasonable in relation to achieving its stated objectives. Thus, the special permits granted by Japan for the killing of whales in the Southern Ocean are not for purposes of scientific research. The Court ordered Japan to revoke any existing permits to kill and refrain from issuing any new permits under JARPA II.
Though opponents of Japan’s whaling programs celebrated the victory in this case, questions remain about the future. In particular, though JARPA II will not continue, the ICJ’s ruling effectively allows Japan to develop a new program and then resume whaling in the Antarctic and Japan has already stated that it intends to design a new program that will begin in 2015-16. Further, the ruling does not affect smaller hunts that Japan carries out in the Pacific Ocean.
When the ICJ discussed in its ruling the impact of sabotage activities on Japan’s ability to kill whales as part of JARPA II, the Court was referring to activities undertaken by the Sea Shepherd Conservation Society, an organization whose mission is to protect ocean ecosystems and species. To do so, it often uses direct action tactics to confront what it considers to be illegal activities on the high seas. As Australia’s case against Japan was in progress, the Institute of Cetacean Research, a Japanese whaling group, sued Sea Shepherd in the American court system, claiming that its direct action tactics are violent and dangerous.
According to the Institute, Sea Shepherd rammed Japanese vessels, launched bottles full of butyric acid on to Japanese ships, deployed prop foulers in the water to stop forward momentum of Japanese whaling vessels, and navigated its own vessels in such a way as to endanger Japanese ships. The Institute sought to prevent Sea Shepherd from performing any of these actions in the future.
Though the trial court declined to issue an injunction, the appeals court reversed the district court’s opinion, finding that Sea Shepherd’s activities were indeed violent and for private ends, meaning that the district court’s dismissal of the Institute’s piracy claim was in error. The appeals court also issued an order that Sea Shepherd vessels not come within 500 yards of an Institute vessel operating in the open sea. In response, Sea Shepherd has effectively transferred operational control from the United States to Australia, theoretically allowing it to continue in its role as opposition to Japan and the Institute of Cetacean Research.
Thus, even after significant court cases have been resolved, the global whaling situation is as unsettled as ever. When the 2015 Southern Ocean whaling season begins, it will likely not be much different than those of previous years, barring significant changes brought about by further legal action, intergovernmental political negotiations, or major changes in Japanese policy.