The Flaws In Regulation Of Japanese Whaling

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The issue of whaling activities across the world has been contentious in nature, with these activities coming under intense scrutiny in recent times. The focus of this review regards how techniques initiated by the Sea Shepherd Conservation Society (SSCS), a non-government organisation (NGO), affects the Japanese whaling effort, and why the SSCS harnessed such techniques. The research topic requires a discussion regarding why the SSCS has a role within the opposition of Japanese whaling and what role traditional state actors are playing within the contentious issue. This is an important aspect of the research field because it requires a critical discussion regarding potential failings in the international governance of the seas, and highlights both the fundamental and detrimental effects of non-state actors within the world of international relations. Whaling divides attitudes across actors in the world, all with different ideologies and backgrounds that either support or oppose the practice. The SSCS is one such organization that actively opposes any form of whaling, scientific or commercial. Founded in 1977 by Paul Watson, the organisation has predominately focussed on ending the Japanese whaling activities in the Antarctic and Southern Ocean. Despite international law and a moratorium on commercial whaling by the International Whaling Commission (IWC) in 1982, the SSCS believes that international governments are not institutionalising these rules and ensuring compliance. It has utilised direct-action protest techniques in order to protect whales, drawing media scrutiny that has provided for tense diplomatic relations.

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Summary

Reviewing the sources identified three key themes that were relevant to the research topic, and its linkage to the field of international relations:

  1. The role of the IWC in regulation of whaling at sea;
  2. The effect of the SSCS upon Japanese whaling, and
  3. The classification of the SSCS as an organisation.

The issue of the role of the IWC in regulation of the seas was deemed by most of the sources as insufficient in its attempts to balance all perspectives. Nussbaum Wichert and Nussbaum (2017) identified institutional weaknesses of the IWC with Nagtzaam and Guilfoyle (2018) reinforcing this argument in relation to the traditional realism. Holm (2019) presented evidence from key Japanese whaling towns severely effected by the 1982 moratorium to provide a localised Japanese perspective to the review, with Bailey (2008) reinforcing the findings that the moratorium was discriminatory in its nature. Scott and Oriana (2019) provided evidence and reinforcement of the damage to Japanese diplomatic relations that the 1982 moratorium inflicted. In terms of effect on Japanese whaling, as actions of the SSCS did not end whaling, it did not have its desired effect. However, as acknowledged by the sources Jabour and Iliff (2009) and Nagtzaam and Guilfoyle (2018), the direct-action protests caused disruptions to the operations through hinderance of the vessels. Kato (2015) identified the importance of media perception influencing the Australian Government’s diplomatic relations with Japan, with Holm (2019) assessing the effects internally from Japan. For the classification of the SSCS as an organisation, the works of Nagtzaam (2014) and Nagtzaam and Lentini (2007) provided the only research surrounding a potential terrorist classification of the SSCS.

Critical Discussion

A common theme of the sources was the ineffective nature of the IWC in its approach to whaling. Whilst it was acknowledged that the IWC had implemented measures to conserve the population of whales and provide for sustainable development through its 1982 moratorium, there is controversy surrounding whether these goals are achieved. Nussbaum Wichert and Nussbaum (2017) suggest that the reasons that the IWC adopted the moratorium banning commercial whaling are ambiguous. They argue that this is due to the evidence showing that the mechanisms put in place do not fulfil the goals of actors across the spectrum. For activists and groups including the SSCS, the controls were inadequate in protecting whales and placing an indefinite end on whaling more broadly. This is an argument supported by Nagtzaam and Guilfoyle (2018), who additionally viewed actions taken by the SSCS to achieve their goals, as identification of a widespread issue within the traditional realist state relationship that do not involve NGOs. They have made a useful contribution to this theme through the hypothesis that because the IWC is ineffective, and no other institutionalised norms have been developed to regulate the seas, NGOs have been required to act in their place. Holm (2019) has analysed evidence from within pro-whaling towns in Japan and has concluded that the moratorium not only failed, but disrespected Japanese culture and history in doing so. This has contributed greatly to the research within this theme because it has been collated following interviews of local Japanese whalers in towns reliant upon the whaling industry. The conclusion Holm (2019) reached is that the 1982 moratorium has had a detrimental effect on domestic life within these towns, providing little regard for detriment to livelihoods, as well as the historical roots in whaling dating back 400 years. This issue is emphasised further because of the evidence presented Bailey (2008) that pro-whaling nations, including Japan, have resigned from the organisation due to its ineffective and discriminatory nature. Bailey (2008) viewed Japan’s ‘scientific whaling’ program as a mechanism through which its obligations to the IWC would be balanced with the considerations that were not accounted for by the IWC initially. This is reinforced by Scott and Oriana (2019) made an important contribution to the topic through their hypothesis that the Japanese actions emphasised the lack of control and jurisdiction possessed by the IWC. As identified by Nussbaum Wichert and Nussbaum (2017), this has the effect of damaging diplomatic relations with anti-whaling nations including Australia, because its negative perception within the media and the public. The literature regarding the topic of the role of the IWC evaluated that its role is ineffective and incapable of providing required institutionalised norms across the world that balanced the perspectives of all actors. It suggested that the IWC is symbolic in nature, with its conventions and moratoriums being ignored by nations and actors depending on their own judgements. Minimum literature is available that suggests that the IWC had played a constructive role in its dedicated goals. Any effective measures were not discussed, with the literature moving quickly on to how state and non-state actors moved to fill the void left in the regulation of the seas.

The SSCS has attempted to oppose Japanese whaling utilising both direct-action protests, as well as persuasion on the Australian Government to act against Japan to an end to the whaling activities. Scott and Oriana (2019) identify these two approaches within their consideration of the ‘Forest Rescue Incident’ in 2012, where the SSCS attempted to perform a citizen’s arrest on the captain of the Japanese whaling vessel, Shonan Maru No. 2 in the Australian Antarctic Territory. Along with Jabour and Iliff (2009), the conclusion these two sources reached was that the SSCS performed an intervention of this nature to reinforce its willingness to cause confrontation, whilst increasing its media presence in order to put diplomatic pressure upon Australia. The latter part of this argument relates to the controversy surrounding Australia’s claim to sovereignty in the Australian Antarctic Territory, where confrontation over whaling has occurred on numerous occasions. Jabour and Iliff (2009) concluded that Australia does not have sovereignty, utilising the evidence that the claim has not received widespread international support through the distinct lack of nations who recognise it. This, the sources suggest, provides difficulty for Australia to uphold international norms surrounding whaling because domestic legislation surrounding whaling in that territory will not be recognised in that territory who will be viewed to fall under international jurisdiction. However as contributed by Kato (2015), the SSCS utilises the media as an audience to its actions in order to rally public support, the Australian Government has been coerced into seeking diplomatic solutions on multiple occasions. Reinforced by Scott and Oriana (2019), this was viewed to be an important limiting factor upon Japan’s whaling activities and contributed to it eventually withdrawing whaling in the Antarctic and Southern Oceans. The judgement of this source presents clear limitations upon why the Japanese halted whaling and attempts to exaggerate the role that Australia played through its NGOs in bringing about this outcome. It does not consider Japanese reasons as to why it pursued this action, and does not take into account perspectives presented by Holm (2019) regarding Japanese culture and whaling’s effect on the local economy or the way Japan is perceived by the international community at a time where it was withdrawing from the 1982 moratorium. In terms of the effect that the SSCS’s direct confrontation protests have on the Japanese at sea, most of the sources, particularly Kato (2015), have suggested that these were initiated because of the perceived inaction of governments. Nagtzaam and Guilfoyle (2018) have suggested that there is a research gap regarding adaptation of human rights on land to those at sea, especially the regulation of protest at sea, and that as such, numerous examples of SSCS actions provide evidence of anarchy at sea. This is the only source reviewed that provides this viewpoint. Most sources have focussed instead on the SSCS’s reliance on the media, and actions of damaging vessels, causing confrontation and other radical approaches. However, all have concluded that as these actions did not stop Japanese whaling, they were unsuccessful in their role. Predominately these sources focussed more on descriptive details regarding major SSCS actions against the Japanese. Whilst they did identify the lack of Australian jurisdiction and effect of Australian diplomatic interventions, a research gap clearly lies in the translation of land human rights onto those at sea, particularly when direct action protests threaten human safely.

The sources uncovered controversy regarding the exact nature of the SSCS as an organisation. Nagtzaam (2014) identifies how the actions of the group have broken numerous laws and have resulted in international arrest warrants and Interpol red notices against Paul Watson for his actions. As Nagtzaam has clearly identified and applied the laws to this judgement, it is clear he could not have considered alternative reasons due to the rule of law. Similarly, Nagtzaam and Lentini (2007) applies Sprinzak’s delegitimatisation model in order to judge actions and use of violence by the SSCS on the seas to determine if the organisation is of a terrorist nature. It is important to identify Nagtzaam as the leading scholar in this area, with little literature available independent of him. The source, however, does not provide a clear answer to the question of what organisation nature the SSCS is. Instead, it concludes that the SSCS could be classified as terrorist due to the violence and unpredictable nature of its actions, however due to ambiguity surrounding how actions, including the sinking of the Sierra, were carried out, it cannot be concluded sufficiently. Indeed, a relevant point is that the international community appeared reluctant to pursue prosecution of the SSCS, despite the principles of international relations towards anarchy. It does provide for reinforcement of the claim by Kato (2015) that the issue of whaling was a ‘war’ between NGOs including the SSCS, and pro-whaling countries. As there is little literature regarding the exact nature of the SSCS as an NGO, the work of Nagtzaam provides the only basis of whether it is a terrorist organisation. As there are no differing perspectives, a research gap has been identified as to whether Nagtzaam’s claim that the SSCS has terrorist organisation similarities. This is a clear weakness in the current literature that needs to be rectified in order to ensure greater security at sea in times of confrontation to ensure the safety of all actors involved. If there is ambiguity surrounding the nature of a party to a conflict, the rule of law cannot be efficiently and properly administrated in order to ensure the continuation of human rights.

Conclusion

The sources regarding the role of the IWC in regulation of the sea identified the organisation as ineffective in its goals of conservation. Most research, especially surrounding the 1982 moratorium, focused on the failing of the organisation to balance the perspectives of the actors surrounding the whaling issue, and left a literature gap surrounding whether the IWC ever had a constructive role in whaling. Similarly, literature focussing on the SSCS identified numerous displays of direct-action protest and its short-term effect on Japanese whaling operations but did not focus on regulation of protest at sea or human rights being extended at sea. They did, however, emphasise the lack of Australian jurisdiction in the Antarctic and Southern Oceans and the ineffective nature of direct-action protests in ending Japanese whaling. Finally, a large literature gap was identified in the classification of the SSCS as an organisation, with Nagtzaam being the leading scholar in providing consideration to this topic, concluding it shared terrorist similarities. Ultimately, the sources provided extensive knowledge on the actions of the SSCS, the IWC and international governments. In doing so, they have provided for limitations that identified gaps of knowledge in the classification of the SSCS as an NGO that could be considered terrorist, and ambiguity surrounding the regulation at sea of human rights enjoyed on land. 

16 August 2021

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