Law of the Sea Symposium: What Responsibility over Iconic Marine Living Resources?

[Dr Natalie Klein is Professor and Dean of Macquarie Law School, Australia]

Cross-posted at SHARES blog.

One of the most successful environmental campaigns was captured by the slogan of ‘Save the Whales’. It was apparently when the Australian Prime Minister’s daughter returned home from school sporting a Save the Whales badge that the initial impetus was provided for Australia to shift from pro-whaling nation to anti-whaling. Over the decades, we have seen a fundamental change in the legal regulation of whaling: from minimal regulation and maximum exploitation to a zero-catch quota (colloquially known as the moratorium) on commercial whaling under the International Convention for the Regulation of Whaling (ICRW). There has been resistance to this moratorium – from those states that never agreed to the imposition of a moratorium and those states that seem to thwart the moratorium by conducting commercial whaling under the guise of legally permissible scientific whaling, as Australia asserts Japan is doing.  If we are to maintain legal standards in the conduct of whaling then how can states be held responsible?

In considering the intersection of the law of responsibility in relation to whaling, there is an initial question as to whom the obligation is owed? It should in fact be the whales. Yet whales are clearly in no position to assert their rights; we do not ascribe nationality to non-human animals. The duty to adhere to the zero-catch quota is obviously owed to other states.  This reciprocal relationship makes sense in many fishing contexts. For example, it might be that one state’s removal of an excess quantity of a species will jeopardize another state’s fishing rights and particularly its allocations. This dynamic was undoubtedly at play in an earlier dispute between Australia and Japan in relation to southern bluefin tuna.

Is the situation more complicated when there is no clear injury suffered by another state? In the dispute between Australia and Japan, Australia does not own the Antarctic minke whales that are primarily taken, nor does it have internationally recognized rights over the maritime space in which Japan conducts its whaling. As far as I am aware, there is no Australian whale watching industry dependent on these minke whales and losing money as a result of Japan’s activities.

But Japan does owe a treaty obligation to Australia by virtue of the ICRW and the very breach of that obligation is enough to provide Australia with a cause of action. Most particularly, the breach of an international obligation owed to Australia provides it with standing to assert a claim before an international court. As such, Australia’s position is quite distinct to that of Ethiopia and Liberia in the South West Africa cases.

The ICRW thus provides a vehicle for asserting claims under the traditional rules of state responsibility. But we should also pause to consider another icon of the oceans and consider the many species of sharks that are currently under threat.  Some species of sharks are as iconic in popular culture as whales but cast as fearsome predators rather than intelligent, communicating creatures.

Irrespective of the public relations, the legal reality is that sharks are not globally protected in the same way as whales.  Only a few species are protected under a small number of treaties and even these regimes do not demand a cessation of commercial exploitation as comprehensive as the zero-catch quota under the ICRW. The most comprehensive international agreement on the conservation and management of sharks is a non-binding international plan of action.

In the absence of specific regulations directed at the conservation and management of a species, the obligations imposed on states are typically broad. The generality of an obligation may be advantageous as it allows for a range of specific assertions under this umbrella, but it also permits a wide scope of action and makes it more difficult to establish that there has been a violation of an international law norm. If states are to be held responsible for excessive exploitation of marine living resources, then we must still ensure that primary obligations are being established, and with enough specificity to be enforceable. The law of responsibility can then provide useful support in enforcing obligations relating to the conservation and management of marine living resources.