In the early morning hours of February 2014, two boats were quietly sailing in the icy Southern Ocean off Antarctica when they suddenly collided. And it was no accident—the collision was, allegedly, intentional.

The conservation group Sea Shepherd claims that Japanese whaling vessels have violently disrupted its operations in the Southern Ocean.

The Bob Barker, owned by the ocean conservation group Sea Shepherd, was sailing to protest the killing of whales in the waters around the South Pole. The Yushin Mara No. 2, part Japanese whaling fleet, crossed its bow in a direct response to the protest effort. According to Sea Shepherd, this was part of a coordinated attack.

“The whaling vessels have also made consecutive attempts to foul the propellers of the Sea Shepherd ships by dragging steel cable across the bows of the conservation ships,” read a statement released by Sea Shepherd. “Further, the crew of the whaling vessels threw projectiles at the Steve Irwin’s [another vessel owned and operated by Sea Shepherd] small boat crew and turned water cannons on the Bob Barker’s small boat crew as they attempted to cut the steel cables.”

This incident is just one example of the many attempts made by Sea Shepherd and other environmental protection groups to end commercial whaling. In December 1946, fifty-nine countries signed the International Convention for the Regulation of Whaling (ICRW) in Washington, D.C. to “[establish] a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks.” They created a governing body, the International Whaling Commission (IWC), to achieve these goals.

The International Whaling Commission, created in 1946 to regulate whaling worldwide, has instituted a moratorium on commercial whaling.

Japan has a long-standing tradition of whaling dating back to the seventh century, and whales have been crucial for food supply. Even the oldest existing book in Japan, the Kojiki, has it on record that Emperor Jimmu, the country’s first ruler according to legend, consumed whale meat. Today, the ICRW’s scientific whaling exemption allows for by-products of scientific research to be commercialized, making whale meat a popular commodity in Japanese markets, despite its high levels of mercury.

When the IWC issued a moratorium on commercial whaling in 1982, Japan objected to the policy. The country continued the practice of whaling, considering the IWC’s ban irrational, until the United States Congress amended the Fishermen’s Protective Act of 1967, threatening to impose sanctions on any nation “[diminishing] the effectiveness” of the ICRW. Fearing loss of access to precious resources, such as a million-ton Alaskan pollock fishery, Japan withdrew its objection in 1986.

Seeing that commercial whaling was no longer a viable option, Japan decided to begin a “scientific whaling” program, which was technically permitted under the ICRW. The program was intended to collect data that would help improve “biological parameters to improve the stock management” of whales and “elucidate the role of whales in the Antarctic marine ecosystem,” according to the pro-whaling Japanese research organization Institute of Cetacean Research (ICR). This led to the creation of JARPA, or the Japanese Whale Research Program under Special Permit in the Antarctic, which was “conducted between the austral summer seasons of 1987/88 and 2004/05.” Subsequent research programs, such as JARPA II and the 12-year long New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A), have continued into the present day.

Results have been mixed. One thing is for certain: since the moratorium went into effect, the number of whales killed for science by Japanese whalers has, in fact, increased. According to an article published by Columbia Law School graduate Julia Bedell, across a span of 30 years prior to the ban, Japan had killed only 840 whales for scientific purposes. Since the moratorium went into effect, that death toll has risen to 11,000.

International reaction to the butchery was swift. The European Commission, in conjunction with thirty countries, sent an “Aide Memoire” to the Government of Japan in 2007 asking them to cease all lethal operations and retire all JARPA II vessels. Under the weight of international pressure, Japan promised to stop hunting humpback whales until the IWC determined the health of the species’ population. However, Japan maintained that JARPA was compliant with the ICRW’s scientific exemption clause, contrary to the recommendations of the ICW. A special ICW report on the effects of JARPA confirmed that there is indeed empirical evidence that a “shift in the Antarctic ecosystem suggested under the JARPA research” has occurred, including decreases in average blubber thickness and stomach content weight of Antarctic whales.  

So, on May 31, 2010, Australia challenged the validity of this “scientific research” program by taking Japan to court—the International Court of Justice, to be exact, which is the principal judicial organ of the United Nations. Four years later, the Court, which is typically conservative in its rulings, agreed that while JARPA II could potentially fall under the category of “scientific research” under the term’s broad definition presented in Article VIII of the ICRW, the actual implementation of the program had violated the Convention.

This seemed to put an end to lethal whaling by the Japanese for a few short months, until Prime Minister Shinzo Abe suggested to a parliamentary committee in June 2014 that the country would resume its Southern Ocean hunt “in order to obtain scientific information indispensable to the management of the whale resources.” In November of the same year, Japan unveiled NEWREP-A and took special care to differentiate the program from JARPA. But an IWC review of the program still found that, despite the lower number of kills, the lethal methods used under NEWREP-A did not conform to ICRW standards and were unnecessary for achieving the program’s objectives of “improving the management procedure for Antarctic minke whale stocks” and “monitoring…the Antarctic ecosystem.”

The International Court of Justice has no way to enforce its ruling against Japan’s scientific whaling program.

The biggest obstacle to actually enforcing the ICJ ruling and ensuring that whales are only killed when necessary is the fact that there are no actual enforcement mechanisms available to the court, aside from influencing the general consensus and opinion amongst member nations. In the past, countries implicated in court proceedings have typically complied with rulings in order to gain the good favor of the international community, but it is not possible to impose actual sanctions on those who do not.

“I see the ICJ as a symbol of international consensus and also, of course, as an arbiter of international law that issues judgments against countries for violating these laws,” said Bedell in an interview with The Politic. “But at the end of the day, it’s up to each country whether or not to abide by the ICJ’s judgments.”

While the anti-whaling movement, particularly in the United States, is ostensibly motivated primarily by an conservationist sentiment backed up by facts and figures, there has long been a claim on the part of the Japanese that the movement is actually driven by anti-Japan sentiment. Claimants like the late University of Oslo professor Arne Kalland cite the fact that Norway kills more whales than Japan does, yet most criticism for whaling is still directed towards the Japaneseand can get pretty nasty. Kalland recounts that Japanese delegates to the IWC have been repeatedly spat at, sprayed with paint, and even physically attacked.

“Not only have whale-eating Japanese been portrayed as barbarians, but whalers are in general accused of being brutal murderers who are ready to kill the world’s last whale in the most hideous manner in their greedy pursuit of profit,” wrote Kalland in a 1998 paper for the ICR. “The failure of the IWC to protect the delegates is symptomatic: the anti-Japanese sentiments are not confined to the NGO observers but are shared among several of the delegates.”

It’s important to note, too, that the whale has long been an important symbol in Japanese culture. In ancient Japan, fishermen considered whales to be embodied deities, forming “whale cults” and cetacean-centered religions in coastal villages, and villagers would bury whale carcasses in sacred mounds known as Kujira Tsuga, which are steeped in myth.

Japan has a long-standing and culturally significant tradition of whaling, dating back to the seventh century.

Still, there is significant evidence that Japanese whaling has done (and continues to do) damage to whale populations, especially near Antarctica. For example, a widely-publicized hunt in 2016 resulted in the deaths of 333 minke whales, including about 200 pregnant whales, a slaughter that Australian officials called “abhorrent” in a BBC article. An ideal solution would, obviously, reduce this damage while allowing Japan to preserve the culturally important practice of whaling, but it’s clear that this has been difficult to achieve so far. As Bedell put it, Japanese whaling is by no means “a black and white situation.” Nevertheless, it’s high time for cooperation—not collision—in order to find the grey area.