What Responsibility over Iconic Marine Living Resources?

 Posted by: Klein Natalie

Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris

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.

Whaling wars, non-state actors and international responsibility

 Posted by: Papanicolopulu Irini

Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris

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 Opinio Juris, 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 into 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.