Sea Shepherd – Defenders of International Law?

Sea Shepherd Steve Irwin
Sea Shepherd vessel Steve Irwin | Photo: Serendipityology, 6 September 2011

By Evie Ward

Sea Shepherd is a non-profit conservation organisation known throughout the world for their hands-on and sometimes violent approach to the protection of ocean habitats and the creatures within.  While they have missions to defend all ocean creatures great and small, it is not Operation Krill putting them in the news. Causing all the controversy is aptly named Operation Nemesis: their mission to protect the Minke Whales of the Southern Ocean.

While whaling has been around since the 9th century, it became problematic in the early 1900s as whale numbers began to severely decline.  People just couldn’t get enough of whales, using their blubber, bones and meat for a whole range of things from candles to cosmetics. In 1927 the League of Nations made an attempt to regulate whaling by proposing an international whaling conference. Whilst this didn’t come to fruition, pressure continued to build for international action until the 1946 International Convention for the Regulation of Whaling (ICRW) founded the International Whaling Commission (IWC) that regulates the whaling industry today.

By 1986, whaling was regarded as barbaric and outdated and, despite regulations, was putting some species of whale at risk of endangerment .  In response, the IWC passed a moratorium on whaling that has stood ever since.  This means that the slaughter of whales for commercial fishing is illegal under international law and therefore all whales of the ocean may exist in peace, right? Wrong.

Despite being signatory to the ICRW, Japanese whalers have continued to capture and kill whales thanks to a loophole in Article 8 of the ICRW that stipulates governments may grant special permits to kill and take whales for scientific research. Despite this, there is ‘overwhaleming’  evidence to suggest that scientific research is not the sole purpose of their whaling expeditions. Japan argues that photography and non-lethal testing is not sufficient for the research they require concerning fish species stabilisation, and the capture and kill method is the only way.  But, following the supposed ‘research’ they carry out, the meat of the whales is then processed and sold domestically, earning around $USD61 million per year. Aside from this enormous profit, the Institute of Cetacean Research, the government-funded agency who runs the whaling program, has not produced a single peer-reviewed scientific paper that demonstrates the deaths of thousands of whales was worthwhile.  While this may sound pretty suspicious, thanks to the loophole, none of Japan’s actions are technically in direct violation of the ICRW, but Australia has argued they are committing an abuse of rights.

In 2001 the IWC decided that an abuse of rights, defined as “the fictitious exercise of a right for the purpose of evading a rule of law or a contractual obligation”, should not be tolerated. While this is usually extremely difficult to prove, in 2014 Australia decided enough was enough and took Japan to the International Court of Justice (ICJ).  Australia won the case and the ICJ ruled Japan’s Antarctic whaling program, JARPA II, was illegal. Although the ruling was only specific to that program, which they have now ceased, the ICJ set a number of tests that would determine if future programs were purely scientific. In 2015 a panel of experts decided that their new ‘scientific’ program, NEWREP-A, did not meet the test requirements and was therefore illegal.

Unfortunately, Japan ignored these findings and recently returned to port after taking a full quota of 333 Minke whales. As a result, Sea Shepherd decided to take matters into their own hands. In the words of Sea Shepherd’s founder, Paul Watson: “governments are not enforcing the laws, so we have to!”

Enforce it they have! While some of the practices of Sea Shepherd have pushed the boundaries of legality –  sinking boats, firing smoke canisters, disabling propellers and more. In their protection of species, they claim to be acting under a mandate to assume a law enforcement role provided by the United Nations Charter for Nature, adopted by the General Assembly in 1982.  While many see Sea Shepherd as heroic defenders of the ocean, Japan see them simply as ‘eco-terrorists’ and have even issued arrest warrants for many of their members. But, while they undertake their missions primarily for conservation reasons, they really are defending an international law ruling.

So what can be done?

Countries such as Australia can put diplomatic pressure on Japan or consider another claim to the ICJ.  The problem is that while Australia strongly disapproves of the whaling, they are still hesitant to do anything that will damage their bilateral relationship with Japan. While some say the actions of Sea Shepherd toe the line of legality, the Japanese have arguably overstepped that line by a whale length, which means Sea Shepherd may well be the only hope for the poor, beleaguered whales.

Evie is a second year political science and international relations and law and society major at the University of Western Australia. As exams approach, she is contemplating joining Sea Shepherd to save the whales.

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