From Comity to Comedy: The Ninth Circuit’s Blanket Injunction on the Sea Shepherd’s Southern Ocean Activities May Be Laughing in the Face of Established International Law

Abstract

On December 18, 2012, the Court of Appeals for the Ninth Circuit issued a preliminary injunction enjoining whale activist group Sea Shepherd from approaching Japanese whaling vessels (“Whalers”). in the Southern Ocean. The decision comes after a bitter two-decade struggle over whaling in and around the Antarctic region. The saga has involved public campaigns, dangerous attacks, and international litigation that seemed to resolve when the Australian Federal Court (“AFC”) issued an injunction on whaling in Australian-claimed regions of the Antarctic. The inclusion of U.S. courts in what otherwise has been a Southern-Hemisphere affair represents a new twist in the story. The Whalers took the legal initiative and brought suit in the U.S. Federal District Court seeking injunctive relief under the Alien Tort Statute. The District Court denied relief for, among other reasons, the doctrine of international comity -a respect for the judgments of foreign courts. On appeal, the Whalers won temporary reprieve pending a decision on the merits. *1052 The injunction is set to be tested. On February 17, the Sea Shepherd kept up its promise to protect the whales and engaged the Whalers to prevent their hunt of minke whales. In turn, the Whalers have begun a contempt action against Sea Shepherd over an alleged breach of the injunction. What remains to be seen is how the U.S. Court of Appeals will proceed in an area already adjudicated by the Australian Injunction.