Law of the Sea Symposium: Maybe Non-State Actors Are More Important than States

Irini Papanicolopulu highlights the important and sometimes central role that non-state actors have in the whaling disputes between Japan and Australia.  Invoking the traditional lens of international law, she considers whether the actions of Sea Shepherd Conservation Society (SSCS) or the Institute for Cetacean Research can implicate state responsibility. Her conclusion is properly uncertain given the murky relationships between Australia and Japan and the relevant non-state actors.  But I wonder if she is asking the wrong question.

The problem of individual non-state actors acting as possible proxies for states is hardly a new problem of international law.  One only has to review the long history of U.S. “filibustering” expeditions into the Caribbean and Central America to find historical examples of individual non-state actors effectively advancing the interests of a state like the United States, even as the U.S. carefully avoided direct support or responsibility.  A U.S. citizen named William Walker, for instance, very nearly brought Nicaragua into the United States through his “private” but tacitly U.S. government supported expeditions (Similar efforts were launched against Cuba and Hawaii, with varying success). In these cases, a private actor is advancing a sovereign’s interest, and the case for state responsibility becomes obvious.

What makes the Australia/Sea Shepherd v. Japan/Institute for Cetacean Research dispute so interesting, however, is the possibility that neither SSCS nor ICR are actually acting in a way that would advance their state’s interests.  We then enter a world where private non-state actors are truly engaged in a private war outside the territorial jurisdiction of any nation.   The private actors in question are truly motivated by their individual interests, and, if anything, they are driving sovereign state policy rather than the other way around.  In this situation, the non-state actors are primary players, but because they operate effectively free from domestic regulations or restraints, their clashes are not clearly governed by international or domestic laws. Hence, the U.S. Court of Appeals’ efforts to squeeze the SSCS in the “pirate” category does seem a stretch. But given the paucity of other regulations for purely private actors on the high seas, it seems defensible or at least more understandable.