[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.]

Cross-posted at SHARES blog.

Natalie Klein has drawn attention to a longstanding weakness in those fields of international law, including international environmental law, devoted to serve collective interests, in matching obligations with rules of responsibility for their breach. The law of state responsibility applies in a fairly straightforward way to situations where there is an obligation under a treaty to protect the environment, that is violated by a treaty party, with clear impacts upon another party. However, as Klein points out, when it comes to iconic whale and shark (and indeed other) species found on the high seas the responsibility situation may be far from straightforward, and this can frustrate efforts to enforce conservation rules.

In the Whaling in the Antarctic Case before the ICJ, Australia contends that Japan has breached the International Convention for the Regulation of Whaling (ICRW) because it is engaging in commercial whaling, in contravention of the moratorium adopted under the ICRW. Australia has not made express its arguments on standing, such as by asserting any special interest in Japan’s conduct above and beyond that of any other party to the ICRW. It is difficult to see how there is any such special or defined interest. Were the ICJ to apply the conventional standing approach this would seem to disentitle Australia from raising this complaint in the ICJ. It could also rule out any challenge by any state against Japan’s whaling program. The net effect is that there could be no party at all able to invoke the potential responsibility of Japan under the ICRW.

This is a clearly undesirable situation. As Klein observes, whales may not have their own legal rights (but of course there is a tremendous philosophical literature on precisely this point). But there is a mechanism, set out in Article 48 of the International Law Commission’s Articles on State Responsibility, for states to seek to defend common environmental values. The International Tribunal for the Law of the Sea referred to Article 48 in its Advisory Opinion on the Deep Seabed and concluded that where there is damage to the environment from mining the deep seabed beyond national jurisdiction ‘each…party [to the UN Convention on the Law of the Sea] may…be entitled to claim compensation in light of the erga omnes character of the obligations relating to the preservation of the marine environment of the high seas and in the Area.’ (at [180]). And the ICJ in Questions Relating to the Obligation to Prosecute of Extradite also concluded that any party to the Torture Convention may invoke the failure of another party to comply with the obligations erga omnes partes established by it (see [68]-[69]).

It remains to be seen how the ICJ will approach these issues in the Whaling in the Antarctic Case, however it is to be hoped that the Court will refer to and endorse Article 48 of the ASR which provides an important avenue for public interest international environmental claims to be pursued.

[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? (more…)

• The government of Colombia and representatives of the FARC say they have reached a deal on land reform, one of the most contentious items in their protracted peace negotiations.
• Syria’s foreign minister has said that his government will take part in a peace conference in Geneva, terming it a “good opportunity for a political solution” to the civil war in Syria.
• Though it is still too early to tell who fired them, two rockets have hit the southern suburbs of Beirut. Additionally, a rocket was fired from south Lebanon towards Israel according to Lebanese security sources; this incident is also being investigated. 
• Col. Alberto Julio Candiotti, a former Argentinian military officer being sought for crimes committed during the country’s 1976-1983 “Dirty War” was arrested last week in Montevideo, Uruguay.
• Protocol 15 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been adopted.

This week on Opinio Juris, drone strikes unsurprisingly took center stage. In anticipation of President Obama’s speech, Jonathan Horowitz contributed a guest post on their human rights impact and Ken pointed to his new essay arguing the case for drone strikes. Deborah linked to the transcript of the speech here, and pointed to two things she liked about it. Deborah also discussed the White House Fact Sheet on Use of Force Procedures, and summed it all up with a post on what the newly released documents on targeted killing tell us compared to the leaked DOJ White Paper a few months ago. Kevin considered the requirement of “near certainty” of no civilian casualties a blatant lie that made him distrustful of all claims made in the speech.  He followed this up with a post outlining two problems with the “near certainty” standard and another arguing that the standards for the use of force in the fact sheet are a retreat from IHL. In a guest post Michael W. Lewis argued that Obama got it right. 

In other posts, Kevin posted a must-see link to a report visualizing international criminal justice and recommended an article by one of his students on the Kapo trials. 

We also revisited our discussion of Samantar, with Ingrid Wuerth’s guest post on foreign official immunity, and of the Philippines-China UNCLOS arbitration, with a post by Julian who wasn’t convinced by Professor Stefan Talmon’s argument that all of the Philippines’ claims against China fall outside of the tribunal’s jurisdiction. Julian also asked whether we should care about the upcoming hearings by the US Senate Foreign Relations Committee on ratification of the Convention on the Rights of Persons with Disabilities.

Speaking of international conventions, Duncan got inspired by Jennifer Lawrence to draft a petition to the White House to ratify the VCLTIO.

Finally, as always we provided you with a list of events and announcements and with weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

• Ahead of Barack Obama’s speech on national security today, in a letter to Senator Patrick Leahy, US Attorney General Eric Holder admitted that the United States has killed four American citizens with drone strikes in Yemen and Pakistan.
• The British House of Commons has passed legislation for same-sex marriage; now the bill goes to the House of Lords for a vote.
• The UN and World Bank chiefs are visiting the Democratic Republic of Congo in a push for peace and development amid fighting in the country’s east causing many to flee.
• A British soldier was hacked to death with a meat cleaver by two men in London in an apparent Islamist terrorist attack, stating that the soldier’s death was “an eye for an eye, a tooth for a tooth.”
• IMF Chief Christine Lagarde is in court in France today to be questioned about a €285 million ($366 million) arbitration payout to a supporter of Nicolas Sarkozy.

• Top officials from India and China met in New Delhi in an effort to ease tensions between the two countries, while a “special envoy” from North Korea visited Beijing in an effort to reinstate some diplomatic ties between the two nations.
• In related news, Japan has been considering restarting diplomatic talks with Pyongyang, with a focus on the abduction of Japanese citizens and other issues.
• According to defense and prosecution lawyers, the trial of former Guatemalan dictator Efrain Rios Montt has likely collapsed after the country’s top court struck down his conviction for genocide. Jurist has more on the Court’s ruling.
• The UK has asked the European Union to place Hezbollah’s military arm on its terrorist group list, denying that this move has anything to do with Hezbollah’s involvement in the Syrian conflict.
• Foreign Policy investigates whether 3-D printing could be the answer to the world’s food shortages.

• In the latest twist on the case, Guatemala’s highest court has overturned the May 10th genocide conviction against former dictator Efrain Rios Montt and reset his trial back to when a dispute broke out a month ago over who should hear the case.
• North Korea has released a Chinese fishing boat after having taken it from waters between the two nations.
• Pakistan’s presumptive prime minister has called for peace talks with Taliban fighters at war with the government. Foreign Policy offers a piece about why negotiating with the Taliban may be a good idea.
• Qatar’s emir said that the emergence of ‘people power’ from the Arab Spring uprisings had put Arabs in direct confrontation with Israel and made a resolution of the Israeli-Palestinian conflict more pressing.
• Justice in Conflict has a post regarding Indonesia and the ICC entitled Indonesia and the false promise of international justice.

• A senior Pentagon official told a Senate committee last week that the U.S. would be at war with al-Qaeda for 15 to 20 more years and said the military could target terrorists anywhere under the Authorization for Use of Military Force (AUMF) passed in 2001 after the Sept. 11 terrorist attacks.
  
• After France won some goodwill throughout Mali during the five-month offensive against al-Qaeda fighters, the European country is now pushing its luck with some allies by pursuing a political settlement with a separate group of Tuareg rebels.
• North Korea has launched short-range missiles again today, following three such launches yesterday.
• A senior judge for the Judiciary of England and Wales partially upheld Foreign Secretary William Hague’s request to withhold certain information from the investigation into the 2006 death of Russian spy Alexander Litvinenko.
• Lebanese Hezbollah militants attacked a Syrian rebel-held town alongside Syrian troops on Sunday and Israel threatened more attacks on Syria to rein the militia in.
• Over at Lawfare, a guest post discusses law, ethics and the Guantanamo hunger strike.

This week on Opinio Juris, Kevin was surprised by an unexpected dissenter in Kenya’s request to the Security Council to terminate the ICC’s Kenya cases. He also analysed whether the ICC has jurisdiction over Israel’s attack on the Mavi Marmara and particularly whether the flotilla attack qualifies as a “situation”. He followed up with a post asking why the Comoros are represented by Turkish lawyers in their referral request and why the referral request was only filed now. He also examined whether the PTC could review an OTP decision not to investigate a situation referred to it.

Kevin called on the ICC to keep its website updated, and listed four errors in the description of NBC’s upcoming series Crossing Lines on the ICC Police Unit, poignantly illustrating why outreach by the ICC itself is important to avoid a distorted public understanding of the ICC.

Peter asked whether the Bangladesh Factory Safety Accord was a watershed moment in global governance, while Roger pointed out problems with the Accord’s arbitration clause.

Julian put the spotlight on the confusing legal background of the Senkaku/Diaoyu Islands dispute, and discussed whether California’s Armenian Genocide Law can be struck down on the basis of “field pre-emption”.

Bill Dodge provided another guest post on Yousef v Samantar, in response to last week’s post by Ingrid Wuerth.

Finally, we listed events and announcements and Jessica provided her weekday news wraps.

Have a nice weekend!

• The UN General Assembly has voted to pass a resolution condemning the Syrian government for human rights violations and call for a transitional government.
• International donors pledged 3.25 billion euros ($4.22 billion) to help Mali recover from a conflict with al Qaeda-linked Islamists.
• A suicide bomber in a car targeted two vehicles carrying foreign forces in Kabul, Afghanistan.
• Three people were killed when the ceiling of a warehouse fell in at a shoe factory in Cambodia, adding to concerns about safety standards at Asian factories producing cheap clothing.
• Foreign Policy has a post about the geopolitics of Google’s autocomplete algorithm.

• The Japanese military’s forced prostitution of Asian women before and during World War II was necessary to “maintain discipline” in the ranks and provide rest for soldiers, an outspoken nationalist mayor has said.
  
• Russia has ordered the expulsion of an alleged CIA agent working undercover at the US embassy who was discovered with a large stash of money trying to recruit a Russian agent.
• Taiwan has recalled its envoy to the Philippines, froze applications for work permits and ordered military exercises in waters between the two sides to press its demand for an apology for the shooting death of a Taiwanese fisherman.
• Wal Mart Stores, Inc. stepped up Bangladesh factory inspections while U.S. and European retailers pursued separate accords to try to prevent another disaster in a garment industry where more than 1,200 workers have died in the past six months.
• Goodluck Jonathan, the Nigerian president, has imposed a “state of emergency” in three states in an attempt to curb the increasingly violent attacks by armed group Boko Haram, saying the level of violence called for “extraordinary measures”.

• UN Special Rapporteur Richard Falk urged Israel to stop construction of a highway that would cut off the local roads of Palestinian community Beit Safafa.
• A Swiss court is trying Belgians and Czechs in one of the biggest money laundering scandals dating back to central Europe’s post-communist privatization boom.
• Major U.S. retailers including Gap Inc. declined to endorse an accord on Bangladesh building and fire safety backed by Europe’s two biggest fashion chains (Sweden’s H&M and Spain’s Inditex SA).
• The US government reportedly secretly seized telephone records of reporters and offices belonging to Associated Press news agency for a two-month period last year.
• ASIL has a new Insight: The Indus Waters Kishenganga Arbitration (Pakistan v. India) (.pdf).