Whale Wars on Trial

By Brent Fewell

Among my favorite reality shows is Animal Planet’s Whale Wars, starring the curmudgeonly captain, Paul Watson, and his rag-tag volunteers aboard the Sea Shepherd who risk their lives in the Antarctic’s icy waters trying to stop commercial whaling by the Japanese.

This week the 9th Circuit Court of Appeals issued an oimagesCANVL7UEpinion, reversing a lower court’s decision and issuing a preliminary injunction against the Sea Shepherd’s attempts to interfere with Japanese Institute of Cetacean Research (“Cetacean”) whaling vessels on the high seas.  Watson and his team are now deemed dangerous pirates.  If you’ve never watched the show, Watson and his crew are an apt portrayal of the keystone cops on the high seas.  And the only danger they pose to anyone is to themselves, given their insanely crazy antics, such as using inflatable dinghies to dart in front of a 425-foot, 8,000 ton Nisshin Maru to deploy a prop fouler.  These people are NUTS, but committed to a worthy cause in my view!

Broadly construing international law, the Circuit Court concluded that the Sea Shepherd’s activities constituted piracy under the international treaty known as the United Nation’s Convention on the Law of the Sea (UNCLOS).

Chief Judge Kozinski writes:

You don’t need a peg leg or an eye patch. When you ram ships, hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships; you are, without doubt, a pirate, no matter how high minded you believe your purpose to be.

While admittedly the Sea Shepherd’s conduct broadly construed falls within UNCLOS definition of piracy, it is hardly the type of conduct that we ordinarily think of as piracy, i.e., Johnny Depp pillaging and plundering other ships, knifing, shooting and keel hauling crews for pirate booty.

Important background – the International Whaling Commission, created under the International Convention for the Regulation of Whaling, signed in 1946 in Washington DC., imposed a moratorium on commercial whaling in 1986.  One exception to this moratorium under Art. VIII is the provision for killing whales for “scientific research.”  A reasonable exemption, unless a signatory country, like Japan, is using it as a pretextual basis for commercial whaling – which clearly seems to be the case here.  Each year under the banner of imagesCAM5TC87“research”, the Japanese government issues a permit to Cetacean to kill nearly 1,000 whales (sperm and minke).   Holy whale blubber – how many dead whales do you need to advance research.  Give me a freakin breimagesCAI1K7MTak – let’s call this for what it is . . . commercial whaling under the guise of research.  How stupid do the Japanese think we are!?   (good background here on the history of Japanese whaling.)

And I must take issue with my conservative colleague, Wesley J. Smith, over at NRO, who praises the court decision decrying “[t]he time has come to insist that radical environmentalists obey the law in their protests. And if Shepherd members don’t obey the injunction, stiff penalties should be paid — and I mean prison.  This is violent behavior that cannot be tolerated.”  While admittedly anti-human, Watson and his team are a far cry from violent and their tactics simply cannot be equated with those of radical groups, like Earth First or Earth Liberation Front, who readily advocate acts of sabotage such as arson or tree spiking with real potential for causing serious bodily injury or death.  Rather, Watson’s team’s whole schtick is to disrupt the whaling commerce in a very public manner – and the acid that the court refers to is intended to taint and ruin any whale meat during processing so that it is not fit for consumption, not to injure the Japanese whalers.

Calling Watson’s actions violent is like saying David’s use of rocks in his slingshot against Goliath was violent.  Okay – technically you may have a point, but the larger point?!  From my perspective, the Sea Shepherd’s tactics are far less violent and more benign than other environmental radicals.  And frankly, the Japanese have done more to endanger the lives of Watson and his team by ramming and sinking one of Watson’s boats, the Ady Gil, and nearly killing its six crew members.  The video here is rather compelling that the Japanese intentionally veered toward the Ady Gil – which, at the time, was broken down and a sitting duck – in an effort to sink it.  Or the time when the Japanese hurled grappling hooks at one of the dinghies, which could have seriously injured, maimed, or killed the protestors.  [Update: a reader correctly points to another time when Watson was struck by a bullet, video here].

While citizens of society must be expected to adhere to the rule of law, those same expectations apply with equal force to their governments.  And when governments fail to adhere to those same  standards, and those with authority to enforce the laws sit idly by and allow illegality to occur in the name of “research”, it begs the question, then what?

Watson and his team have correctly sought to bring international attention to an international problem and, in so doing, have also highlighted another problem, “tragedy of the commons” on the high seas, which I’ve discussed here.  The U.S. Government needs to take a more proactive and aggressive role in monitoring and stopping this charade by the Japanese.