Whaling in the Antarctic

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Brief Summary of Whaling in the Antarctic
Tom Krepitch (2014)

Modern whaling is much different than it was in the time of Herman Melville’s Moby Dick.  In the nineteenth century, whale hunters would take handheld weapons to sea in a small boat and, when they caught a whale, they would bring it back to shore to convert it into products like oil, margarine, soap and corsets.  This changed early in the twentieth century, though, with technological advances including harpoons and what the whaling industry called a factory ship.  These large factory ships are so named because they are essentially factories at sea – they allowed whalers to process their catches on a ship and thus the whalers did not have to make a return trip to land each time they caught a whale.  After a few decades of this increased productivity, though, the whalers realized that they were harming the global whale population by killing more whales than were being born. 

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 whaling industry.  As time passed, though, the killing of whales drew strong criticism from individuals and nonprofit organizations like Greenpeace.  Today, due to this anti-whaling sentiment, as well as dramatic decreases in demand for products made from whales, there are only a few countries that continue to hunt whales.  Japan, Norway, Iceland, the Faroe Islands and some smaller nations combine to kill approximately 2000 whales each year.  It is Japan’s whaling program that has received the most attention in recent years.

In the 1980s, ICRW members, including Japan, agreed to a ban on commercial whaling (essentially, killing whales and selling the products to generate revenue).  However, the members also agreed to allow what they called scientific whaling to continue.  As the name suggests, this is the killing of whales for the purpose of advancing scientific knowledge.  Shortly after the ban on commercial whaling went into effect, Japan began a program of what it labeled scientific whaling in the Southern Ocean surrounding Antarctica.  In 2010, Australia sued Japan at the International Court of Justice (ICJ), arguing that Japan’s program was actually not for scientific purposes, but was instead a cover for a commercial whaling program.  The Court ruled that Japan’s whaling program in the Antarctic was illegal and ordered Japan to cease the program.  However, the ruling left open the opportunity for Japan to redesign its program and resume whaling in the future.  Japan has already stated it will do so, beginning in the 2015-16 whaling season.

While the case at the ICJ was proceeding, a Japanese whaling company sued Sea Shepherd, the environmental protection non-profit organization that is shown in the popular television series Whale Wars.  Sea Shepherd sends its own ships to the Southern Ocean with the intent of interfering with the Japanese whalers.  The whalers’ lawsuit alleged that Sea Shepherd’s acts are illegal and that its team members are pirates.  The most current ruling in the American court system was not in Sea Shepherd’s favor, but the organization has effectively moved its operations from the United States to Australia.  Thus, despite major lawsuits, the future of whaling remains highly uncertain.

Overview of Whaling in the Antarctic
Tom Krepitch (2014)

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.


Related articles

Alana Preston, Eco-Terrorism in the Southern Ocean: A Dangerous Byproduct of the Tangled Web of International Whaling Conventions and Treaties, 34 Whittier L. Rev. 117, 119 (2012).

Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the Southern Ocean, Anthony L.I. Moffa, 37 Yale J. Int'l L. 201 (2012).

Calling off the Hunt: The Morality of Supporting a Ban on Commercial Whaling, Tyler Dewey, Animal Legal & Historical Center (2007).

Resurrecting the International Whaling Commission: Suggestions to Strengthen the Conservation Effort, Adrienne M. Ruffle, 27 Broklyn J. Int'L. 639 (2002).

Related cases

Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 2014 WL 3579639 (W.D. Wash. July 21, 2014).

Inst. of Cetacean Research v. Sea Shepherd Conservation Soc., 725 F.3d 940 (9th Cir. 2013).

Inst. of Cetacean Research v. Sea Shepherd Conservation Soc., 860 F. Supp. 2d 1216 (W.D.Wash, 2012).

Related laws

International Convention for the Regulation of Whaling (ICRW) signed in 1946.

Related Links

Web Center:

Whales Topical Introduction

MMPA/Dolphins Topical Introduction

External Links:

International Whaling Commission (ICW): http://iwc.int/home

Institute of Cetacean Research (ICR): http://www.icrwhale.org/eng-index.html

International Court of Justice (ICJ) Whaling in the Antarctic case information: http://www.icj-cij.org/docket/index.php?p1=3&code=aj&case=148&k=64

International Fund for Animal Welfare (IFAW), "Economics of Whaling" (pdf article): http://www.ifaw.org/sites/default/files/economics-of-japanese-whaling-japan-ifaw.pdf

Sea Shepherd: http://www.seashepherd.org/who-we-are/

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