目次
- 事実
- 日本の調査捕鯨の法的評価
- 公海の自由
- 国際社会の共通利益の侵害：公海の自由
- 国際社会の共通利益と自国の固有の利益を同時に守る主権国家の責務
Based upon the articles by the author:
- ”Double Aspects of Being a Sovereign State: Positive and Passive Aspects”
- https://cigs.canon/article/20240611_8158.html (With a lead in Japanese)
- https://cigs.canon/en/article/20240611_8159.html (With a lead in English)
- ”Japan’s Withdrawal from the International Convention for the Regulation of Whaling,” Japanese Yearbook of International Law, Vol. 62 (2019), pp, 376-387.
- “So-called 'Eco-piracy' and Interventions by NGOs to Protect against Scientific Research Whaling on the High Seas: An Evaluation of Japanese Position,” in C. R. Symmons ed., Selected Contemporary Issues in the Law of the Sea (2011), pp. 195-220.
- “Legal Responses of Japan to Impediments and Harassments by Foreign Vessels against Japanese Vessels during Research Whaling in the Antarctic Sea” Japanese Yearbook of International Law, No. 52 (2009), pp.553-582.
（Contents）
- Facts
- Legal Evaluation of Japan’s Research Whaling
- The Freedom of High Seas
- Violation of the Common Interest of International Society: The Freedom of High Seas
- A Duty of a Sovereign States to Protect Common Interests of International Society and Its Inherent Interest at the Same Time
1. Facts
(1) Impediments and Harassments by the Vessel of Sea Shepherd against Japan’s Vessels Conducting Research Whaling on the High Seas
Since 2005 Sea Shepherd vessels conducted violent acts against Japan’s research whaling vessels in the Antarctic Sea.
The violent activities include the followings among others: first, they obstructed the transfer of target whales from the catch boat onto the mother vessel; second, they caused a risk of a collision by approaching so closely to Japan’s research whaling vessels; third, they threw a wire rope into the sea with the intent of making the screw propeller of Japan’s research whaling vessels entangled with the wire rope; fourth, they threw bottles including butyric acid and/or powder substances into Japan’s research whaling vessels; fifth, they charged themselves toward Japan’s research whaling vessels.
(2) Red Notice Issued by the International Criminal Police Organization (INTERPOL)
In 2010, Japan charged Paul Watson, the founder of Sea Shepherd, with the crimes of injury and forcible obstruction of business under its Penal Code. Upon request by Japan, in 2012 INTERPOL issued a red notice against Paul Watson.
A red notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
(3) Detention of Paul Watson by Denmark and Japan’s Request of His Extradition
When the ship of Paul Watson decked within Nuuk, Greenland’s capital, he was detained on the basis of the red notice of INTERPOL. He intended to prevent the operation of Japan’s whaling vessel, the Kangei Maru, in its exclusive economic zone. On the 31st of August, 2024, Japanese government requested his extradition to Japan. Danish government extended his detention from the 15th of August to the 15th of September, 2024.
2. Legal Evaluation of Japan’s Research Whaling
In 2014, in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the International Cour of Justice (ICJ) decide that Japan’s permission in relation to its research whaling programme “JARPA II (Monitoring of the Antarctic Ecosystem and Development of New Management Objectives for Whale Resources)”, which was operational in November 2005, does not fall under within the provision of Article VIII, Paragraph 1, of the International Convention for the Regulation of Whaling (ICRW). The ICJ found Japan’s violations of the obligations under ICRW.
It is important to confirm the time sequence of the events that this column deals with. It was in 2010 that Japan charged Paul Watson with the crimes mentioned above, and it was 2012 that INTERPOL issued the red notice. During these years, international society was deeply divided between po- and anti- commercial whaling. Within the International Whaling Commission (IWC), some members argued that Japan’s research whaling was not actually “research whaling.” It was in 2014 that the ICJ decided the illegality of JARPA II operating from 2005 under ICRW. In 2010 and in 2012, such a decision did not exist. Therefore, at the material time of the incident that this column is taking up, Japan could argue the legality of its research whaling. Japan’s request of 2024 of the extradition of Paul Watson is based upon such legal situation in 2010.
In addition, an individual sovereign State does not have any competence to unilaterally judge legality or illegality of any matters. International society consists in sovereign States that are equal to and independent from each other. Thus, there is no authority to make a decision on legality of an act of a sovereign State. It is not to mention that a private non-governmental organization (NGO), such as Sea Shepherd does not have any such competence at all. Even the ICJ cannot entertain disputes and make judgments, unless sovereign States give their consent to it. Furthermore, any individual sovereign State and any NGO are not allowed to take violent measures, even for the purpose of preventing internationally illegal acts.
Therefore, there is no justification under international law for the violent acts by Sea Shepherd against Japan’s research whaling vessels. Then, what legal interests did those violent acts infringe?
Certainly, they violated Japan’s individual interests, as Japan’s vessels and their crew were damaged. In this regard, it should be recognized that as long as there is room for Japan’s research whaling in the Antarctic Sea to be legal, such research waling and navigation and other activities accompanying to its operation fall under within the freedom of high seas, the Antarctic Sea. The impediments and harassment by Sea Sheperd form an infringement on the freedom of high seas, which is a common interest of international society.
3.The Freedom of High Seas
Under international law, the law of the sea, high seas are open to all States in the world. All States enjoy the freedom of uses of high seas. No States are allowed to establish their sovereignty on high seas. The order of high seas is maintained by the flag State principle. According to the principle, flag States, namely the States of nationality of vessels, have exclusive competence (jurisdiction) on the vessels flying their flags. They should exercise such jurisdiction to ensure their vessels to adhere to the international law rules on the uses of high seas, such as, the safety of navigation, the conservation and management of fishery resources, and the protection and preservation of the marine environment.
Regarding Japan’s research whaling, as long as there is possibility for it to be legal under international law, it is a legal use of high seas. The navigation of Japan’s research whaling vessels is also the freedom of navigation of high seas.
The law of the sea confers the exclusive jurisdiction on a flag State. As an exercise of such jurisdiction, Japan can apply its Penal Code to its research whaling vessels. Article 1 of the Penal Code of Japan[i] reads:
Article 1
(1) This Code applies to anyone who commits a crime within the territory of Japan.
(2) The same applies to anyone who commits a crime on board a Japanese vessel or aircraft outside the territory of Japan (emphasis added).
Japan charged Paul Watson with the crimes of injury and forcible obstruction of business. When such crimes are conducted on board a Japanese vessel, the Penal Code of Japan apply to them. When such crimes are committed by a foreigner from the outside of a Japanese vessel, as long as the conditions set by the following provision of the Penal Code are met, the Code would apply to them. Article 3-2 of the Penal Code reads:
Article 3-2
This Code applies to any non-Japanese national who commits one of the following crimes against a Japanese national outside the territory of Japan:
…
(iii)the crimes prescribed under Articles 204 (Injury) and 205 (Injury Causing Death) (emphasis added);
This is the passive personal jurisdiction under international law. The Japanese Law on Punishment of and Measures against Acts of Piracy, enacted in 2009, does not contain such obstructive acts as those against Japanese research whaling in its definition of acts of piracy. Its applicability to the violent acts by Sea Shepherd might be further argued. Here, it is enough to point out this.
In the history of international law, the freedom of high seas is one of the oldest principles of international law, which has been discussed and established since the 16th century. Therefore, it can be safely said that the freedom of high seas is a fundamental principle of international law, the law of the sea, and is reflecting one of the most established common interests of international society.
4. Violation of the Common Interest of International Society: The Freedom of High Seas
Considering the violent acts by Sea Shepherd confirmed above in Section 1. of this column, both Japan’s research whaling vessels and their crew were harmed and placed in serious danger of incurring damage. Thus, those violent acts caused damage to Japan’s individual and inherent interests.
The point is, however, that such violent acts also violate one of the most fundamental and common interests of international society, namely, the freedom of high seas.
As explained in Section 3 above, regarding Japan’s research whaling, as long as there is room for it to be legal under international law, it is a legal use of high seas, which means an exercise of the freedom of uses of high seas. The navigation of those vessels is also the freedom of navigation of high seas, as among the freedom of uses of high seas. Therefore, the impediments and harassments by Sea Sheperd against Japan’s research whaling vessels are not only violations of Japan’s inherent interests, but also infringements on the common interest of international society, namely the freedom of high seas.
Considering the freedom of high seas, it is totally understandable that the IWC issued more than once resolutions condemning such violent acts. It did so even during the relevant time of the occurrence of the impediments and harassments by Sea Sheperd against Japan’s research whaling vessels, there was a serious division of opinions between pro- and anti- whaling, particularly commercial whaling.
The Resolution on the Safety of Vessels Endangered in Whaling and Whale Research Related Activities, which was made at the 58th IWC Annual Meeting in St. Kitts & Nevis, 2006 (resolution 2006-2),[ii] reads:
WHEREAS the safety of vessels and crew and the order of maritime navigation
are and have long been, the common interest of nations worldwide,
WHEREAS the Commission and Contracting Governments support the right to
legitimate and peaceful forms of protest and demonstration,
MINDFUL of the fact that issues relating to confrontation between vessels at
sea and in port have been discussed by this Commission as well as other international
fora including the International Maritime Organization,
RECOGNISING the fact that domestic and international concerns have been
expressed concerning confrontation at sea and port relating to whaling and
whale research activities,
SERIOUSLY CONCERNED that dangerous confrontations risk human life,
property, and the order of maritime navigation, and may lead to grave
accidents,
RECALLING the International Regulations for preventing Collisions at Sea
which set uniform principles and rules for avoiding collisions at sea,
RECALLING further the guidelines of the International Maritime Organization
relating to consultation and cooperation in marine casualty investigations,
NOW THEREFORE THIS COMMISSION, AGREES AND DECLARES that the
Commission and its Contracting Governments do not condone any actions
that are a risk to human life and property in relation to these activities of
vessels at sea, and urges persons and entities to refrain from such acts;
ENCOURAGES Contracting Governments to take appropriate measures, consistent
with IMO guidelines, in order to ensure that the substance and spirit of
this Resolution are observed both domestically and internationally (emphasis added).
Also, the subsequent resolution made by the IWC with mentioning the preservation and protection of the marine environment, and referring to the Convention for the Suppression of Unlawful Acts against the Safety of Navigation, confirmed the gist of the previous resolution. The Resolution on Safety at Sea and Protection of the Environment, which was made at the 59th IWC Annual Meeting in Anchorage, USA, 2007 (Resolution 2007-2),[iii] reads:
WHEREAS the safety of vessels and crew, the order of maritime navigation,
and environmental protection, are, and have long been, the common interests
of nations worldwide;
WHEREAS the Commission and Contracting Governments support the right to
legitimate and peaceful forms of protest and demonstration;
RECALLING that the 58th Annual Meeting of the Commission adopted
Resolution 2006-2 in which the Commission agreed and declared that the
Commission and its Contracting Governments did not condone any actions
that are a risk to human life and property in relation to the activities of vessels
at sea, and urged persons and entities to refrain from such acts;
SERIOUSLY CONCERNED that certain confrontations and actions at sea relating
to whaling and whale research activities risk human life, property, the
marine environment, and the order of maritime navigation, and may lead to
grave accidents;
RECOGNISING the need for all States to take actions, in accordance with relevant
rules of international law and respective national laws and regulations, to cooperate as appropriate to prevent and suppress actions that risk human life and property at sea;
RECALLING the Convention on the International Regulations for Preventing
Collisions at Sea which set uniform principles and rules for avoiding collisions
at sea;
NOTING the general obligation in Article 192 of the United Nations Convention
on the Law of the Sea that States protect and preserve the marine environment
as well as Article 194(1) and (5) on the need to prevent, reduce and control
pollution in the marine environment including by taking measures necessary
to protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of marine life;
…
MINDFUL of the fact that issues relating to confrontation between vessels at
sea and in port have been discussed by this Commission as well as in other international fora including the International Maritime Organisation;
RECALLING applicable international instruments, including the Convention for
the Suppression of Unlawful Acts against the Safety of Navigation, relating to
international cooperation for the prevention of unlawful acts against the safety
of maritime navigation and actions against alleged offenders;
…
NOW THEREFORE THE COMMISSION AGREES AND DECLARES again that
the Commission and its Contracting Governments do not condone and in fact
condemn any actions that are a risk to human life and property in relation to
the activities of vessels at sea;
URGES persons and entities to refrain from such acts;
…
URGES Contracting Governments to take actions, in accordance with relevant
rules of international law and respective national laws and regulations, to cooperate
to prevent and suppress actions that risk human life and property at
sea and with respect to alleged offenders;
URGES Contracting Governments to cooperate in accordance with UNCLOS
and other relevant instruments in the investigation of incidents at sea including
those which might pose a risk to life or the environment (emphasis added).
5. A Duty of a Sovereign States to Protect Common Interests of International Society and Its Inherent Interest at the Same Time
The author examined elsewhere[iv] the fundamental structure of international law. International society which consists in the co-existence of sovereign State, lacks any authoritative legislative, enforcement, and judicial organs. Without consent from a sovereign State, there cannot be any binding laws, compulsory law enforcement measures, or judicial decisions.
Under such fundamental structure of international law, and with what international law enables a sovereign State to realize, and with what it requires of a sovereign State, a sovereign State has a negative aspect of sovereignty, namely the conformist aspect to comply with international obligations, and at the same time, a positive aspect of sovereignty, namely the reformer/creator aspect to create and reform international law.
Taking advantage of the possibilities and opportunities that the fundamental structure of international law and the current characteristics of international law both provide a sovereign State, sovereign States really should recognize and utilize particularly this positive aspect to realize their own national interests with fine compromises or in combination with common and/or general interests bearing universal values.
In the same thought, as one of a mission of a sovereign State, with respect to the current incident of the impediments and harassments by Sea Sheperd against Japan’s research whaling vessels, Japan in requesting the extradition of Paul Watson to it, should clearly understand the following points.
In making such a request, and in combating the incident, Japan is recovering and maintaining not only its own inherent interests, but also the common interest of international society. That is, the freedom of high seas, which is a fundamental interest to be protected under the international law of the sea. It is true that whether extradite or not is the decision by Danish government. Nonetheless, this fact never changes the critical importance in that Japan should have such a sense of mission for the sake of international society.
With such a sense of mission, Japan would really deserve being a sovereign State as a subject of international law.
[i] https://www.japaneselawtranslation.go.jp/ja/laws/view/3581.
[ii] Reproduced in Atsuko Kanehara, “Legal Responses of Japan to Impediments and Harassments by Foreign Vessels against Japanese Vessels during Research Whaling in the Antarctic Sea” Japanese Yearbook of International Law, No. 52 (2009), Anex I, p. 579; https://crm.iwc.int/data/node/8656.
[iii] Reproduced in ibid., Anex II, pp. 579-580; https://crm.iwc.int/data/node/8651.
[iv] Atsuko Kanehara, ”Double Aspects of Being a Sovereign State: Positive and Passive Aspects”
https://cigs.canon/article/20240611_8158.html (With a lead in Japanese)
https://cigs.canon/en/article/20240611_8159.html (With a lead in English)