27 May 2013

Whaling wars, non-state actors and international responsibility

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.

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