By Gavin Carter
Groups opposed to economic activity and development try to limit the extraction and use of natural resources in a wide variety of ways. With so many resources found in and under the oceans, it is not surprising that the marine ecosystem has become a key strategic battlefield.
Most of the battles take place peaceably in the corridors of power, with environmentalists advocating for new economic restrictions such as marine protected areas, more complex regulatory mechanisms and trade controls.
But it is “direct action” on the high seas that increasingly is raising concerns. Cargo ships, fishing vessels and even oilrigs have been illegally boarded. Fishermen have been attacked and had their catches sabotaged.
In the wake of these developments, the system of international conventions that promotes safety at sea is suddenly looking vulnerable, if not impotent. Faced by the challenge of growing lawlessness on the High Seas, some of history’s greatest advocates for higher maritime standards have balked.
The most notorious of the “direct action” groups is Sea Shepherd, which sabotages fisheries, sealing and whaling operations. Sea Shepherd makes clear that it is not a protest organization. Anyone doubting its ability to sabotage fisheries and hunting can view its own video of the attacks on YouTube or watch the TV show Whale Wars.
Sea Shepherd rationalizes that any activity it disapproves of is illegal and therefore a legitimate target. In addition to having sunk whaling boats in port in Spain, Iceland and Norway, Sea Shepherd vessels deliberately ram ships at sea. The organization’s crews regularly fire glass projectiles from homemade mortar devices, destroy fishing nets or try to disable the propellers of vessels by dragging ropes and cables.
There is no doubt that someone perpetrating similar attacks on land would be immediately apprehended by law enforcement authorities. So, to try to evade national jurisdictions, this US-based group attacks foreign ships on the high seas with multinational crews. And it uses Dutch and Australian flagged vessels that are purportedly owned by a United Kingdom subsidiary.
Sea Shepherd has circumvented International Maritime Organization (IMO) safety conventions by self-designating its ships as yachts. In May 2010, the IMO responded with a Resolution urging flag states to ensure that all vessels in such confrontations comply with its regulations.
Flag and port states are free to inspect vessels and determine whether such a designation is appropriate. The authorities in Cape Town detained one Sea Shepherd vessel for failure to comply with IMO requirements and Canada later denied the same vessel entry into its territorial waters for the same reason. But if flag and port states choose to turn a blind eye, the IMO provides the ultimate victims with little recourse.
The most basic requirement for ensuring safety at sea is for crews to be properly qualified. Sea Shepherd should be complying with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). But the Netherlands, as flag state of the larger attack vessels, continues to fail to apply this convention to Sea Shepherd.
Instead, Sea Shepherd requires crewmembers to sign a personal indemnity that releases the organization of any responsibility in the event of injury or death. Armed with this legal defense, the group’s leader, meanwhile, glibly vows that, “we will undertake whatever risks to our lives will be required.” One can only wonder how flag states and the IMO would respond if regular commercial vessels chose to skirt the STCW in the same way.
Unqualified crews put other vessels and themselves in danger, as was evidenced in 2010 when a Sea Shepherd trimaran (itself hardly fit for a hounding role in the Antarctic) collided with its intended target and later sank. In its accident report, Maritime New Zealand noted that the Sea Shepherd crew “were all volunteers and did not hold maritime documents or have significant seagoing experience.” Fortunately no one died.
Australia, meanwhile, allows Sea Shepherd to use its ports as bases from which to launch the attacks. This is prohibited by the SUA Convention (Suppression of Unlawful Acts against the Safety of Maritime Navigation) but, astonishingly, each year Australian officials fail to take any action against Sea Shepherd’s blatant preparations to attack the whaling vessels. Australia is also the flag state of the replacement trimaran, Brigitte Bardot, whose unqualified crew was placed in considerable danger just before Christmas when she was damaged by what Sea Shepherd described as a “rogue” wave. The craft was escorted to Australia by the unqualified crew of another Sea Shepherd vessel. Again, it is fortunate that no one died.
Behind all this is the fact that the Netherlands and Australia strongly oppose whaling today, although both are former whaling nations. Australia has even taken the unusual step of taking Japan to the International Court of Justice in an attempt to stop research whaling in the Antarctic. But opposition to an activity on ethical grounds (the whale populations are abundant and the catches are small and sustainable) hardly seems sufficient to suspend the rule of law on the High Seas.
Simply put, by not applying the IMO conventions, the Netherlands and Australia are facilitating Sea Shepherd’s violent attacks. Damage to vessels already has been incurred, seafarers’ lives have been put at risk and some crewmembers have been injured.
With these nations continuing to avoid their international obligations and responsibilities, Japan’s Institute of Cetacean Research (ICR) and Kyodo Senpaku filed a complaint against Sea Shepherd in December 2011 with the US district court in Seattle. Years of patient bilateral diplomacy had yielded no results and the organizations felt they had few other options to ensure the safety of their vessels and crews.
This landmark action has implications for seafarers everywhere because it aims to establish clear legal boundaries, based on safety concerns, on what type of “direct action” is (and is not) permissible at sea. And it is surely a far more preferable route to resolution than having fishermen arm their vessels with heavy weaponry.
Nevertheless, the need for legal action is disappointing because it highlights the inadequacies of our international maritime governance system. Nations can ward off Somali pirates with naval vessels but are unwilling to deal with the seemingly more straightforward problem of unlawful “direct action”. Militant vegetarianism doesn’t ignite the same level of urgency and, for some, it may even appeal to a sense of romanticism. But this culture-based lawlessness – which troublingly also brings in millions of dollars in donations for Sea Shepherd – carries with it a range of threats to individuals, vessels and commerce.
For whatever reason, the Netherlands and Australia have not grasped the wider implications of Sea Shepherd’s attacks. If nations start to liberally pick and choose those conventions they wish to enforce, then the whole system of maritime regulation loses meaning and credibility. Laws cannot be applied arbitrarily.
To paraphrase the French philosopher Voltaire, even if they disapprove of some the activities being carried out at sea, nations should defend the right for them to be undertaken lawfully. Mob rule and anarchy on the High Seas is incompatible with the managed utilization of natural resources.
