Law of the Sea Symposium: Whaling wars, non-state actors and international responsibility

by Irini Papanicolopulu

[Dr Irini Papanicolopulu is a Lecturer at the University of Glasgow and Senior Research Fellow at the University of Milano-Bicocca]

Cross-posted at SHARES blog.

Whaling disputes are multifaceted. While Australia and Japan are confronting each other in The Hague (see the post by Natalie Klein), Sea Shepherd Conservation Society (SSCS), an American NGO, and the Institute of Cetacean Research (ICR), a Japanese research institution, fight strenuously in court and at sea. Following the moratorium on commercial whaling decided by the International Whaling Commission in 1984, Japan has licensed ICR to conduct research projects involving the killing of numerous whales. ICR activities, however, are increasingly physically hampered by SSCS vessels, which harass ICR vessels on the high seas. As already noted on this blog, in February the U.S. Court of Appeals for the Ninth Circuit reversed a lower court and granted ICR a preliminary injunction against SSCS, defining the latter as ‘pirates’. And while ICR is threatening contempt action against them, SSCS for their part have initiated proceedings in front of a Dutch judge for violation of environmental laws by ICR.

The fight between SSCS and ICR reserves many dramatic turns and much suspense but … is there any room for issues of international responsibility in a case that pits one private entity against another private entity? Is not this a matter for domestic jurisdiction or, at most, an issue for conflicts of law? Not entirely: the presence of actors other than States adds complexity to issues of international responsibility and raises a number of questions. Two strands are significant. In the first place, the presence of individuals does not automatically rule out the State. States always act through individuals or other entities, their organs, and they can endorse or support the conduct of subjects other than their own organs. If Japan endorses or supports the acts of ICR, or if Australia supports the activities of SSCS, the States can incur responsibility directly, for breach of international obligations. In the second place, the dispute between SSCS and ICR raises issues relating to the subjectivity of non-state actors at the international level, and the extent to which they may make use of, or be subject to, the rules regulating international responsibility.

From among the many issues involving whaling disputes and international responsibility, I will briefly address three. In the first place, can international actors other than States and international organisations incur international responsibility? In the specific case, can SSCS and ICR be held responsible on their own account? The answer to this question depends on whether international law binds them. Undoubtedly, both SSCS and ICR have a number of legal obligations under national systems, including the national legal system of the state of incorporation and the legal system of the flag state. Furthermore, obligations derive also from the legal system of the state of nationality, to the extent that these operate extraterritorially, as well as from the legal system of the coastal State, when the SSCS vessels are sailing in the maritime zones of states other than the flag state. It is however more doubtful whether international law imposes obligations directly on SSCS or ICT. In light of their status as non-State actors, they are not subject to the same legal obligations that bind States.

In the second place, can the acts of the two private actors engage the responsibility of a state? While SSCS present themselves as enforcing treaties and other legal instruments adopted by states and within international organisations, this is not sufficient to engage directly the responsibility of states, unless a state endorses the conduct of SSCS. State responsibility might arise, however, also in the case of inaction of states. It is a fact that SSCS has repeatedly violated international standards relating to the safety of navigation and the protection of human life at sea. In cases involving collision or other acts threatening the safety of navigation and endangering human life, the flag state has the obligation to act and to undertake an inquiry as envisaged by Art. 94(7) United Nations Convention on the Law of the Sea. Therefore, lack of enforcement by the flag state against SSCS and its vessels amounts to a breach of the flag State’s positive obligations under law of the sea and maritime law instruments, generating its international responsibility.

The position of ICR, on the other hand, is less clear. According to information provided on its website, ICR ‘is a nonprofit research organization whose legal status is authorized by the Ministry of Agriculture, Forestry and Fisheries, Government of Japan, as a foundational judicial person’. It is therefore not clear whether it can be considered as an organ of Japan or as a distinct entity under international law. Certainly, the fact that it is licensed by Japan to conduct scientific research is not in and of itself sufficient to consider it a state organ as provided under the ILC Draft Articles on State Responsibility.

Finally, and turning to the consequences of international responsibility, who can invoke responsibility at the international level and exercise the rights of the injured subject? And, in particular, who can take countermeasures against whom? Countermeasures are a characteristic feature of the international legal order, which lacks a centralised enforcement authority and may be taken by one state against another state. If it were established that Japan is violating international treaties and other rules on whaling, the acceptance by other States of illegal conduct by SSCS might, for example, be considered as a lawful countermeasure. Such countermeasures, however, should be proportionate and would encounter a limitation in the need to comply with jus cogens. Supporting or tolerating acts that endanger human life, or that constitute a threat to the safety of maritime navigation cannot be considered as lawful countermeasures, since they would be in violation of the right to life.

While state countermeasures that comply with jus cogens are admissible, this is not the case with countermeasures adopted by other actors. There does not appear to be any rule of international law allowing private entities to undertake countermeasures, be they directed at states or at other private entities that have incurred into international responsibility. This is in line with the effort to reduce as much as possible recourse to countermeasures, but also with the absence of any duties that bind private entities under international law to the general respect of norms of international law, including human rights.

http://opiniojuris.org/2013/05/27/law-of-the-sea-symposium-whaling-wars-non-state-actors-and-international-responsibility/

3 Responses

  1. First, it’s unfortunate that observers of such international legal entanglements seek to remove the legal argument from the reality and history of its subject.

    The UN Convention on the Law of the Sea, in Article 65, declares that nations shall cooperate for the conservation of marine mammals through appropriate international bodies — which in this case is the International Whaling Commission, established by the 1946 ICRW.

    That’s the same IWC which established a moratorium on commercial whaling, that went into force in 1986, and created the Southern Ocean Whale Sanctuary in 1994. The IWC has also repeatedly and specifically called on Japan to stop killing whales in multiple resolutions.

    However, Japan has a long history of subverting and violating IWC decisions that dates back long before the moratorium. The worst and most blatantly illegal acts were facilitating and funding blatant poaching by ‘pirate whalers’ in the 1970s and 80s.

    The Convention on International Trade of Endangered Species also prohibits the trade of whale products. However, Japan also imports whale meat from Iceland and Norway.

    Furthermore, international anti-piracy laws were not established to suppress political or environmental protest as is noted by ITLoS judge H.E. Jose´ Luis Jesus. He wrote, “Likewise, the ‘private ends’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the ‘private ends’ criterion seems to be excluded.” (THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW, Vol 18, No 3, 378 – 379)

    So the fundamental problem is certain states refuse to abide by international conventions in good faith and other states fail to enforce their own agreements; at least when the violator is the 3rd largest economy in the world. When citizens attempt to thwart poaching — which is exactly what Japan is doing — through acts of civil disobedience and direct action the courts and the international extradition process are abused — by the violating state — in order to suppress protest and thus enable ongoing subversion of several international conventions.

    With some hope for legal sanity the Supreme Court of the USA will vacate the 9th Circuit ruling and condemn this new ‘invented’ definition of ‘private ends’ which labels protesters as pirates — and remind the 9th Circuit where the judicial branch ends and the executive branch begins as the US government has officially opposed Japan’s poaching for decades.

    With some hope for justice, the ICJ will find that Japan is indeed in breach of its obligations as a signatory to the 1946 International Convention for the Regulation of Whaling, CITES, and UNCLoS.

  2. It’s also important to point out the unclean hands of the Japanese whale poachers when it comes to questions of ‘safety’.
    The whalers have purposely rammed activists, even destroying one small carbon fiber boat with its crew of 6 protesters still on board. The whalers have also fired lethal explosive tipped harpoons over the heads of Greenpeace activists. They’ve thrown explosives at unarmed protesters and metal hooks the size of hand anchors at unprotected activists, and more.

    In all of its years of protest and action, Sea Shepherd Conservation Society has never killed anyone, never beaten anyone up or taken anyone hostage (and never threatened to either). The accusations put forth by the whalers have been typically exaggerated much in the way that oppressive governments often describe street protesters as terrorists in order to leverage greater punishment in the courtroom for simple acts of civil disobedience and vandalism.

  3. The question of whether the ICR  is an actor for the Japanese State is moot if one just looks at the ICR website.
     
    …it states, “Thus far, independent entities such as national laboratories, universities, voluntary research institutions, and individual- researchers have been studying whales and other marine mammals. These studies, however, are closely related and must be better coordinated to contribute to the solutions required at the national and international levels,making it possible for Japan to take a more active role in international organizations.”
    The important line is “solutions required at the national and international levels, making it possible for Japan to take a more active role in international organizations”
    Anyone who thinks that the ICR is not an organ of the Japanese state is, if one will forgive me, living in ‘cloud cuckoo land’. Just as Japan would not send an independent scientist to the IWC Scientific Committee, so the ICR does not appear to act without the authority of the Japanese State. 
    The real purpose of the ICR and its attack on whales can also be seen in its statement of purpose…http://www.icrwhale.org/abouticr.html
    “…Problems surrounding Japanese fisheries have become increasingly complex in recent years in relation to the conservation and management of marine mammals, as exemplified by the IWC’s adoption of a moratorium on all commercial whaling in 1982 and the Southern Ocean Whale Sanctuary in 1994, as well as by the tightening of regulatory measures on driftnet and other fishery technology.
    More restrictive measures are expected to be imposed internationally upon fisheries, including high-seas fisheries. Japan will have to respond appropriately to solve future problems in order to contribute to the proper conservation, management, and rational utilization of marine resources.”
    The highlighting is mine. But what is clear is that Japan, and its agency, the ICR, sees itself at the forefront of opposing international regulations of international fisheries. 
    Indeed, the whaling debate, a costly and politically difficult paradigm for Japan to maintain, … is really about acting as a stalwart against any regulation of fisheries of any type.
    The shame is that thousands of whales have to die for Japan to make its point,… simply because it has neither the science or the confidence in its own ability to argue its case in other fishery fora.

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