A Critical Legal Precedent in Anti-Whaling Defense was made, but at the time the whalers did not know just what implications this would have.
On February 25, the U.S. Court of Appeals for the Ninth Circuit issued a landmark decision, ruling that Sea Shepherd Conservation Society’s actions against the Institute of Cetacean Research (ICR) constituted acts of piracy under international law. The ruling stems from Sea Shepherd’s aggressive tactics against the whaling fleet, including ramming, deploying smoke bombs and butyric acid containers, attempting to foul propellers, and using lasers against personnel. The court clarified that piracy under international law includes illegal acts of violence, detention, or depredation committed for private ends. This definition extends beyond financial motives to encompass all acts not conducted on behalf of a state, placing both Sea Shepherd’s actions and those of whalers under this legal framework.
The Whale Defense Agency (WDA) now finds itself in a position to take full advantage of this legal precedent to ensure the safety and effectiveness of its missions. This decision clarifies that whalers — engaging in private acts of violence for commercial purposes — are subject to the same piracy laws as anti-whaling groups. Consequently, any aggressive action undertaken by whalers, such as counter-prop fouling or other disruptive tactics, could now be legally classified as piracy.
WDA operates with strict adherence to international law, focusing on non-violent, strategic disruption of whaling activities. However, if whalers resort to hostile actions, the legal framework provided by this decision and existing laws allows the WDA to defend itself through lethal or non-lethal means, as authorized by maritime law, anti-piracy laws, and the UN Convention on the Law of the Sea (UNCLOS).
The Ninth Circuit’s ruling sets a precedent that legitimizes the right of organizations like WDA to protect themselves from illegal acts of violence on the high seas. This includes using force — within the bounds of international law — against whalers who deploy aggressive tactics like counter-prop fouling, which is an attempt to disable a vessel’s propulsion system by entangling the propellers with ropes or nets.
In a case where the whalers resort to piracy in the form of disrupting WDA operations, the Agency is fully entitled to defend itself using both lethal and non-lethal means, provided the response aligns with the principles of proportionality and necessity in self-defense. Under international law, piracy is considered a universal crime, allowing nations to prosecute perpetrators under universal jurisdiction, which now extends to include whalers who engage in such unlawful practices.
The irony of this situation is that the whalers themselves have created a system that undermines their ability to operate effectively. By advocating for and benefiting from the Ninth Circuit’s decision, they have effectively set up a legal framework that restricts their own ability to use aggressive tactics without risking classification as pirates under UNCLOS themselves. This significantly weakens their position on the high seas, as they can no longer rely on physical confrontation or counter-measures like prop fouling without facing serious legal or in-the-field consequences.
The WDA remains committed to operating within the law, maintaining its focus on cutting-edge technological solutions and strategic disruption tactics to protect marine life. The organization will continue to engage in covert, and high-visibility actions and campaigns against whaling while ensuring that any self-defense measures are entirely within the scope of international maritime law and that do not provoke a response that would enable the use of force.
The Whale Defense Agency (WDA) has developed innovative anti-litigation strategies to stay ahead of the legal tactics often employed by pro-whaling organizations and governments. One key aspect of these strategies is the use of RHIB (Rigid Hull Inflatable Boats) teams that operate under extreme levels of anonymity. These teams are deployed without any visible identification, meaning no WDA logos or markings are present on the boats or uniforms. This ensures that any direct action taken — whether it’s engaging a whaling vessel or disrupting an illegal hunt — cannot be directly traced back to the WDA. Without identifiable evidence, whalers and their legal teams face significant challenges in pursuing litigation, as they cannot pin the disruption on a specific organization or individual. This approach helps mitigate the risk of retaliatory legal actions and keeps the WDA’s operations out of the public and legal spotlight.
Another key tactic is the deployment of unmanned underwater vehicles (UUVs) for underwater prop-fouling operations. These UUVs are capable of subtly deploying lines into the propellers of whaling ships, effectively neutralizing their movement without ever being detected. By using these covert methods, the WDA avoids the legal consequences associated with direct confrontation of organizations like Sea Shepherd who often flew flags, wore helmets with the skull and cross bone logo, as the actions by WDA are performed without leaving behind any traceable evidence. The prop fouling creates operational setbacks for the whalers, but from a legal perspective, there is no obvious interference that could lead to a formal legal claim. It could have been floating marine debris they ran over and not a WDA prop fouler, either way, they can’t pin it on WDA this way. This ability to disable whaling vessels while remaining undetected gives the WDA a significant edge in protecting whales without drawing the ire of legal entities. In fact it disrupts the primary method of their strategy – documentation. Without this, they can’t do a whole lot in a legal sense.
By combining these stealthy operational methods with an emphasis on anonymity, the WDA ensures its interventions are effective and legally insulated. The lack of identifiable involvement makes it exceedingly difficult for whaling operations to build a case for litigation, and their attempts to intimidate the WDA through legal means become more difficult to pursue. In addition, WDA has engineered preemptive strikes and actions against the whaling fleet and industry in response to even taking such a move. This could include small-scale sabotage, to the loss of the Kangei Maru as a whole. This novel approach not only disrupts whaling activities, it also disrupts their legal strategy by eroding the root cause of it (evidence of actions) but also upholds the agency’s core principle of non-violent and strategic intervention. We also control the flow of information in ways that make it difficult for the whalers to respond. Overall, this approach is crucial to undermine the Whalers litigation approach. By all accounts, they just want to hold anti-whalers in court in so-called “distraction” to prevent sea-based actions. For WDA, we undermine this by eroding the strengths they have.
