[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.
