Hell below Zero? Japan and the International Court of Justice

In 1954, Albert Broccoli (a.k.a Cubby Broccoli) directed a film called Hell Below Zero, a murder mystery involving a Norwegian whaling company operating in the wild Southern Ocean. While he was later to find fame as one of the directors of the James Bond franchise, the movie gave viewers a sense of what the whaling industry might have been like; brutal, intriguing and ultimately a search for the very thing that made the business profitable – whales. Hell Below Zero was not the first movie to address this industry, as Down to the Sea in Ships (1922), Moby Dick (1930) and Adventure’s End (1937) would attest, but it was the one of the few to focus on the Southern latitudes rather than the whaling industry off the North East United States. Norway, until the 1960s, was the major whaling nation in the far south and an essential accomplice to British imperial power (as much as an agent of ‘environmental authority’). Scholars such as Peder Roberts have charted this intriguing Anglo-Nordic polar relationship in the twentieth century. But as Charlotte Epstein has shown, the economic and strategic importance of whaling changed markedly in the 1960s as anti-whaling discourse helped to transform the whale from a unit of resource to something that had to be valued and indeed protected. 

Whaling was in the proverbial spotlight again recently when the International Court of Justice in late March 2014 handed down an important judgement regarding Japanese whaling in the Southern Ocean. In a nutshell, Japan was allowed to continue what was termed ‘scientific whaling’ in the aftermath of the introduction of a 1994 Southern Ocean Whale Sanctuary. Japan opposed its establishment. The International Whaling Commission, created under the terms of the 1946 International Convention for the Regulation of Whaling, is the primary international actor responsible for regulating the whaling industry. The IWC is a voluntary organisation and members can walk over from the body if they so wish. The SOWC is renewable every ten years and in 2004 Japan attempted to secure support for its revocation. This initiative failed to secure the necessary 75% support from the membership. 

Recently, Japan scientific whaling has been criticised and indeed been confronted by non-governmental organisations such as the Sea Shepherd Conservation Society. The SSCS and states such as Australia claim Japanese whaling is not scientific in nature but rather a commercial operation. The SSCS has also had a history of direct confrontation with the whaling operators in the Southern Ocean leading some to worry whether the terms of the 1959 Antarctic Treaty (which does not address whaling but does declare Antarctica a zone of peace) are not being threatened. In the 2010-11 season, Japanese whaling activities were actually halted by direct action undertaken by SSCS and newspaper stories abounded about clashes between vessels. SSCS was accused of engaging in piracy/eco-terorrism by Japan and Captain Paul Watson has often been caught up in stories of direct action, arrest, and extradition requests. 

More generally, whales and whaling science and conservation have revealed itself to be deeply controversial, and accusations abounded for much of the last decade plus that the IWC membership was being pressurised by whaling and anti-whaling states alike. In the 2013-14 season, the SSCS and Japan were trading accusations of harassment and confrontation as newspapers such as the Guardian reported. All of this kind of drama added dramatically to the costs of Japanese whaling operations as insurance premiums rose alongside costs for extra security on top of fuel price rises. There was also public outcry within Japan when it was revealed that some of the tsunami relief fund monies (the figure of around £20 million was cited) were being used to support the security costs of the whaling industry in 2011. 

What was perhaps most devastating was that the 2014 ICJ judgement calls into doubt Japan’s commitment to ‘whaling science’ and the scientific achievements of its whaling program (JARPA). As was noted:

219. The Court notes that the Research Plan uses a six-year period to obtain statistically useful information for minke whales and a 12-year period for the other two species, and that it can be expected that the main scientific output of JARPA II would follow these periods. It nevertheless observes that the first research phase of JARPA II (2005-2006 to 2010-2011) has already been completed (see paragraph 119 above), but that Japan points to only two peer-reviewed papers that have resulted from JARPA II to date. These papers do not relate to the JARPA II objectives and rely on data collected from respectively seven and two minke whales caught during the JARPA II feasibility study. While Japan also refers to three presentations made at scientific symposia and to eight papers it has submitted to the Scientific Committee, six of the latter are JARPA II cruise reports, one of the two remaining papers is an evaluation of the JARPA II feasibility study and the other relates to the programme’s non-lethal photo identification of blue whales. In light of the fact that JARPA II has been going on since 2005 and has involved the killing of about 3,600 minke whales, the scientific output to date appears limited.

The ICJ judgement is a victory for Australia which applied to the ICJ to have Japanese whaling activities legally challenged in May 2010. The Australian government and non-govenmental organisations always claimed that the scientific rationale for the whaling program was thread-bare. The Court in effect ordered Japan to cease, under the permitting scheme associated with JAPRA II, in granting any further permits to whale in the Southern Ocean. In the aftermath, the Japanese government released a statement confirming that it would respect the judgement of the ICJ – rather than walk away from the IWC and simply carry on regardless (but that almost certainly carry with it a medley of diplomatic, legal and political ramifications.) 

This is an important episode not only in the global history of whaling but also in the way in which science, politics and diplomacy in the Southern Ocean intermingle with one another. There is a wider issue at stake here, which goes beyond the fate of whales and whaling, and that is how scientific knowledges. objects and practices are tied to geopolitical power in the Antarctic and Southern Ocean. Other objects such as fish, other living organisms, and rocks are also tied into circuits of power. While Australia, as the largest claimant state in the Antarctic has scored a legal victory over Japan, it remains concerned over the scientific, geopolitical and resource exploitation activities of other countries, especially China







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