Written By:  Casey E.R. Sanders
Researched By:  Moorisha Bey-Taylor
Edited By:  Stephen Robbins
Managing Editor:  Mary Anne Nash

Every week, Animal Planet airs the reality television series “Whale Wars.” The show chronicles the

missions of the radical environmental group Sea Shepherd as they attempt to disrupt the Japanese whaling fleet from the hunting of minke and fin whales. The television show has become a cult hit and cultural phenomenon, raising both praise and ire from the general public. The Sea Shepherds brave the fierce storms and freezing waters of the Southern Ocean to prevent what they claim is de facto commercial whaling by the Japanese under the guise of scientific research. The Japanese in turn have accused the Sea Shepherd activists of piracy, and even in the United States critics have accused the group of radical eco-terrorism. Sea Shepherd’s leader Paul Watson is no stranger to controversy and seems to revel in the rebellious nature of his group’s mission.

Whale Wars has brought issues of commercial whaling and alleged piracy into our homes as riveting television. But what legal regimes have created this flurry of controversy? Both Sea Shepherd and the Japanese claim to be on the right side of the law and accuse the other side of flagrantly violating it. What fuels the so-called Whale Wars is a fascinating mix of international law, or lack thereof, conservation efforts, scientific research, cultural values, and continued legal controversy that seems unlikely to fade away in the near future. So which side has the sharper legal harpoons?

A Whale Of A Tale

Whaling has been part of the cultural traditions of most oceangoing peoples since ancient times. Many of these cultures engaged in sustainable near shore whaling which ensured the continual survival of whale species. That changed however in the 17^th century with the advent of large scale European whaling expeditions which could last for many months and yield large profits for investors. These expeditions devastated previously sustainable populations of whales and resulted in a dramatic decline in certain populations of whales. Large-scale whaling seemingly knew no bounds as the whalers exhausted populations in the Atlantic and began to devastate whales in the Pacific. As industrialization of whaling continued, methods became more and more effective at catching and killing whales.

Recognizing that whale populations were declining dramatically as well as the potential tragedy of the commons problem whale stocks presented, in 1946 the major European and American whaling countries reached an agreement known as the International Convention for the Regulation of  Whaling. The convention established the International Whaling Commission (IWC) to supervise whaling and ensure the continued survival of whale stocks. The powers given the IWC include the ability to set quotas on a species by species basis, dictate open and closed seasons for whaling, and establish whale sanctuaries in which no whales can be hunted. Since the founding of the IWC many more countries have joined, with Japan entering in 1951.

Things changed dramatically in the 1970’s and 80’s with increased scientific research on whales. Suddenly whales were no longer simply seen as the sea monsters of old, they had dense social structures and performed complex whale songs. Ever increasingly cetaceans were viewed in more and more human terms and organizations such as Greenpeace began advocating for an outright abolition of whaling. In particular the United States became an increasingly vocal advocate for greater restrictions on whaling. Finally in 1982, the IWC member states voted 25-7 to support a moratorium on commercial whaling beginning in 1986. Japan was among the seven countries that voted against banning commercial whaling.

Japanese View on Whaling

Since the beginning of the ban on commercial whaling, Japan has been arguably the most vocal critic of the moratorium and its consequences. The Japanese claim whaling as an important part of their cultural heritage and are extremely resentful of “Western insensitivity” toward their whaling heritage. Japan has repeatedly attempted to lobby other countries to support an overturning of the moratorium, but has failed to rally countries to their cause. In addition to the IWC, Japan faces difficulties in any potential resumption of commercial whaling operations from the United States which has legislation on the books that would severely limit Japanese fishing in American waters if Japan ever violates the rulings of IWC. It is the threat of sanctions in the international community especially from the United States that seem to check Japanese whaling ambitions more than anything else.

Almost immediately after the commercial moratorium on whaling was issued, Japan protested the IWC’s scientific basis for applying the moratorium. Article VIII of the 1946 convention allows for any member of the IWC to issue special permits to allow for the killing of whales in the interests of scientific research and for the government of that country to mandate what is done with the whale after the killing. Japan thus far is the only member state of IWC to issue these scientific research permits.

In 1988, the Japanese began a program known as JAPRA to scientifically study minke whales in around Antarctica.  The goals of JAPRA were the scientific study of minke whales for the estimation of minke whale stock numbers (specifically for better management of stock numbers), the role of whales in the Antarctic ecosystem, and the effects of environmental changes on the whales. In order to “properly” conduct the research, the Japanese proposed the killing of a limited number of whales and after the research was conducted, processing the whale meat and giving it up for commercial sale. Japan has also initiated a small program closer to home in the North Pacific.

Initially JAPRA did not seem to raise much controversy within the IWC. The Japanese government went so far as to praise the researchers efforts saying “that JARPA has already made major contributions to the understanding of certain biological parameters” of whale populations in a 2002 research plan. However when the Japanese attempted to expand the scientific research with a new program, JAPRA II, the IWC sprung into action and condemned the “lethal aspects” of the research in a 2007 resolution. Nevertheless Japan has continued to exercise its Article VIII rights and maintained the research harvest in the Southern Ocean.

A Shepherd Protecting Their Flocks

The continued Japanese whale hunting in the name of scientific research has not escaped environmental organizations. Greenpeace has been particularly critical, accusing the Japanese of outright commercial whaling under the guise of scientific research and pointing out that the research done by the Japanese is only useful for the resumption of commercial whaling, something Greenpeace is firmly opposed to.

But no group has been more critical and openly hostile to the Japanese whaling fleet than Sea Shepherd. Since its founding, Sea Shepherd and the group’s leader Paul Watson have orchestrated a truly global campaign against whaling operations. Sea Shepherd proudly lists multiple successes in the destruction of multiple whaling vessels on its website and the Institution for Cetacean Research maintains a similar list of “alleged terrorist activities.”

Sea Shepherd is committed to vigilante tactics in openly disrupting the Japanese whaling fleet, yet still recognizes the need to find a basis in law for their actions. Paul Watson claims the authority to do this comes from the United Nations World Charter for Nature. Specifically Sea Shepherd claims that Section 21 allows “states and, to the extent they are able, other public authorities, international organizations, individuals, groups and corporations,” to implement the applicable international legal provisions for the conservation of nature and the protection of the environment.” The Japanese fleet takes whales in a designated whale sanctuary, and Sea Shepherd has declared this action to be illegal and has taken enforcement into its own hands.

The Murky Nature of International Waters

The great drama of Whale Wars is created by the nature of international law. There is no police force on the high seas and both the Japanese, by hunting in an IWC designated whale sanctuary, and Sea Shepherd, in engaging in destruction of property and other tactics, operate free of any interference by other ships. This has essentially created a zone of vigilantism in the Southern Ocean where both the whalers and the anti-whalers must fend for themselves.

While Sea Shepherd’s tactics, such as putting crew members onboard a Japanese vessel and claiming they were illegally “detained” have raised the specter of piracy charges, it seems unlikely that any charges could hold up. Piracy as defined by the United Nations consists of any “illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft” and Sea Shepherd does not meet those criteria. In practice Sea Shepherd seems to be committed to skirting, but not crossing, the standard of “violent acts.” Watson himself claims that “Our record speaks for itself. In 30 years of operations the Sea Shepherd Conservation Society has never caused a death or a single injury.” Sea Shepherd also exploits the lack of jurisdiction: most countries are reluctant to allow charges against Sea Shepherd to proceed, and Sea Shepherd does not operate in Japan.

Hunting the White Whale

Both the Japanese and Sea Shepherd remain stubbornly committed to fighting for their beliefs on the high seas of the Southern Ocean. This will probably lead to a continuing cold war between the whalers and whale activists with compromise unlikely in the near future. Given the reluctance of the IWC or the international community to denounce the actions of either side in any meaningful way, the Whale Wars, and the compelling television they produce, will continue unabated.