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Civilian protest vessels and the law of the sea*

Published online by Cambridge University Press:  07 July 2009

Glen Plant
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Extract

French riot police met the Greenpeace Organisation's ship “Sirius” with CS gas, when she tried to enter Cherbourg harbour in January 1983. She was acting in defiance of injunctions and a ban imposed on Greenpeace vessels by the harbour Prefect after an earlier similar protest against the import of spent nuclear fuel in 1980. She and her international crew were detained for several days; her captain was prosecuted and the UK Director of the environmental protest organisation, Mr. Peter Wilkinson, was held in prison overnight by virtue of an injunction – of which he had been unaware – against his personal presence anywhere in France.

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Articles
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Netherlands Yearbook of International Law , Volume 14 , December 1983 , pp. 133 - 163
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Copyright © T.M.C. Asser Press 1983

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References

1. Telephone conversation with a Greenpeace worker 20 January 1983; Times, 7 and 8 January 1983 pp. 18 and 49. See also Times 26 January 1983 p. 69, for an incident in which Greenpeace protesters pursued a ship carrying spent nuclear fuel from Stockholm as she left for La Hague in France.

2. At the time of writing this article, 20 February 1983: telephone conversation with Greenpeace worker 15 February 1983. The French government is inviting Greenpeace to collect her from Papeete in Tahiti, but Greenpeace considers it under an obligation to return her to New Zealand. When the “Vega” was detained by France in 1973, the French authorities told the owner after three months that he could pick her up in Tahiti; the Canadian Government offered to pay the cost of shipping her to Canada: McTaggart, and Hunter, Greenpeace III – Journey into the Bomb (Collins, 1978)Google Scholar [hereafter “McTaggart”] at pp. 310–1.

3. Letter from Elaine Lawrence of “Greenpeace III”, Paris to author 3 December 1982.

4. Peace 1983 Calendar (Better Days, London).

5. That designated under the Oslo and London Conventions, infra pp. 15–16.

6. The Guardian, 6 September 1982 p. 4.

7. Telephone conversation with Mr. Wilkinson, 21 December 1982.

8. Greenpeace Europe is increasingly concerned about the proliferation of national restrictions upon its vessels and supporters.

9. By implication from Arts. 19(3) and 20(3) Convention on the Territorial Sea (1958) (CTS) and decisions of national courts, such as the English decision in the Eisler Case 26 BYIL (1949) 468.

10. Wildenhus's Case 120 US 1 (1887).

11. E.g., Higgins, and Colombos, International Law of the Sea (1954)Google Scholar; sed contra the Aramco arbitration 27 ILR (1958) p. 117.

12. The replacement, “objectivised” definition in Art. 19 (2) Convention on the Law of the Sea (CLOS) 1982 almost certainly does not yet represent customary law.

13. CTS Art. 17.

14. Compare Panama (Compania de Navegacíon Nacional) Claim v. US: Hunt's Report 765 –: 812 (1933) 6 RIAA 382, and Cunard v. SS Mellon 262 US 100 (1923) with R. v. Keyn (1876) 2 Ex. D. 63.

15. Examples include the harassment of the “Vega” in 1972 and possibly the allegations by Spain against the “Rainbow Warrior” in 1980 (infra).

16. This accords with the view that the high seas are res communis rather than res nullius.

17. Geneva Convention on the High Seas (hereafter CHS) Art. 5.

18. CHS Art. 10.

19. Van, Zwanenburg, “Interference with Ships on the High Seas”, 10 ICLQ (1961) p. 785 at 786Google Scholar; IIMoore, “Digest of International Law” (1906) p. 886.Google Scholar

20. CHS Art. 22.

21. E.g., the only (possible) example of a use of warships in support of a community interest, as opposed to simply national interests, in the Law of the Sea is the sending of HMNZS “Otago” to protest against French nuclear tests in 1973, together with the Australian naval oil tanker HMAS “Supply”.

22. This view is supported, not only by the “Otago” (ibid.), but also by the examples of states acting in support of the rights of foreign flag vessels (infra n. 42).

23. The ILC's Draft Article 19(3)(d) on State Responsibility calls acts of massive pollution international crimes: Report on the work of its 31st Session 1979: GAOR 34 S, Supp. No. 10 (A/34/10). The exclusion of the freedom of navigation from this draft weakens claims that it is a right erga omnes. It must also be noted that the ILC relied heavily on “soft law” in concluding that massive pollution was a right erga omnes.

24. CLOS Art. 58.

25. CLOS Art. 56.

26. In 1978 there were 30 Exclusive Fishery Zones (EFZ) and 37 EEZ claims of 200 miles: VII and VIII NDLOS; Rodière and Remond-Gouillet, La Mer (1980) at p. 99; Moore, J.-N., in Conference Papers on the Law of the Sea, (Thessalonika Institute of International Law 1977) at p. 150Google Scholar; ILA Yearbook (1978) at pp. 284–7; and Mazilu, , Dreptful Marii Bucharest (1980) at pp. 243–4, inter alia.Google Scholar

27. Author's London University. Ph.D. thesis “The Evolution of Restraints upon the Freedom of Navigation” (1982) at p. 147.Google Scholar

28. Unless otherwise stated, all information is taken from pamphlets supplied to the author by the Sea Shepherd Fund: Sea Shepherd News; Sea Shepherd Report; and Sea Shepherd: the Ship that Avenged 25000 Whales.

29. Act. 33/77 of 28 May 1977. Penalties established under Decree Law 47947 of 28 September 1967 apply to such acts. See UN Legislative Series National Legislation and Treaties Relating to the LOS 1980 ST/LEG/SER.B/19.

30. CHS Art. 15.

31. The acts are private acts, despite their political motivations, unless they can be shown to be in support of a generalised right.

32. CHS Art. 5.

33. A.P. Watts, 52 BYIL (1957); Schulte, H., Die villigen Flaggen in Volkerrecht at p. 93Google Scholar; Riphagen, W., 41 Mededelingen van de Nederlandse Vereniging voor International Recht (1959) at p. 20Google Scholar, according to Meyers, , The Nationality of Ships (Martinus Nijhoff, The Hague 1967)CrossRefGoogle Scholar. The comments of certain states in the pleadings before the ICJ in the IMCO Advisory Opinion also support the view that absence of a “genuine link” prevents a state giving a vessel its nationality: Switzerland (ICJ Rep. 1960 Pleadings, at p. 250) and the Netherlands (ibid, at p. 297) and to a lesser extent Norway and Italy (ibid, at pp. 355 and 344), sed contra Liberia and Panama (ibid, at p. 297). See also Meyers, at pp. 234–9.

34. It is difficult to see the relevance of any additional requirements, such as ownership or nationality of crews, to the underlying purpose of the link between flag state and ship, the need to ensure adequate regulation.

35. Meyers, ibid., at p. 110 and p. 282.

36. The express references to “non-recognition” as the result of absence of a “genuine link” in the Dutch-proposed 1955 draft ILC Rules and the French and Italian draft Art. 29 at UNCLOS I(A/Conf. 13/40, pp. 117 and 123) were easily rejected by the Conference. In the Plenary Meeting the vote was 30 in favour of removal of the clause, 15 against and 17 abstentions. A/Conf. 13/38 p. 20. Nevertheless, Meyers says that, for a number of reasons, non-recognition remains a consequence of absence of “genuine link”: ibid, at pp. 279–281. The consequence of statelessness is that a ship is protected only by general principles of international law, and none of the Law of the Sea Conventions apply to her.

37. Ibid., at pp. 282–3.

38. Whiteman, , 8 Digest (1967) pp. 706–726Google Scholar, cites a number of instruments in support of the view that excessive delay in trials of aliens is a denial of justice: the American Law Institute's Restatement of “Reponsibility for Injuries to Aliens” 181(h) and (1965) 179(2)(e); Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens Art. 7(j) 1961, 55 AJIL (1961) pp. 545, 550–1; and the International Covenant on Civil and Political Rights Art. 14(c) 1966.

39. The European branch of Greenpeace operates the “Rainbow Warrior” on a permanent basis and also, it seems, the “Sirius”, registered in the UK and the Netherlands respectively, the US Pacific branch, the “Peacock”. The “Vega”, renamed “Greenpeace III”, is used in the anti-nuclear test protests. Other ships are obtained ad hoc for particular operations.

40. Claims were upheld in respect of the deaths of foreign nationals on a ship in the “I'm Alone” Case (infra n. 90) and the “Lusitania” Case: 17 AJIL (1923) p. 361.

41. Deliberate attacks by armed ships or aircraft, for example, upon foreign ships in peacetime, excluding civil war actions, mistaken attacks and actions against protest vessels, since World War II, number over 60. In 47 cases the victim was an isolated merchant ship or rig, and in 9 the attacker was unidentifiable: London University Ph.D. thesis of author, op. cit., at pp. 254–265.

42. Apart from the protest boat incidents detailed below, examples include the US Navy's authorisation to its ships to protect all vessels attacked in the Caribbean area, following the attack upon and seizure of the “Lalia Express”, a Panamanian registered merchantman, owned by Cuban exiles based in Miami, in 1973: USNIP Naval Review 1974. An increasingly broad view of piracy is being taken, suggesting support for a “universal” basis for jurisdiction in this area: the “Santa Maria” Case of 1961 (Whiteman, 4 Digest (1965) p. 263Google Scholar; and the Soviet description of the seizure of the “Touapse” by Taiwan in 1954 as piracy. The “Lalia Express” Case could, however, result from the USA's broad and erroneous view of the effect of the “genuine link” provison of Art. 5 CHS, since Panama is a flag of convenience state (supra for discussion).

43. Only three major shipping countries had not ratified the 1972 Convention by 1979, Italy, Portugal and Panama.

44. Usually the courts of the state where the vessel's underwriters have their place of business.

45. For example of homicide; the Lotus Case 10 PCIJ Reps, Ser. A, (1927) p. 1.

46. Author's Ph.D. thesis, op. cit., at pp. 203–5. Examples might include the collision between HMS “Ark Royal” and the Soviet Kotlin-class destroyer in 1970 (Times 10–20 November 1970) and the Anglo-Icelandic Cod War incidents; Ships Monthly September 1976 at p. 6.

47. See infra n. 56; also “McTaggart” at pp. 25–8 and 34–8.

48. See text infra and “McTaggart” at pp. 38–44.

49. I shall assume that abuse of rights is a concept accepted in international law, although it is controversial; see Whiteman, 5 Digest (1965) p. 224.Google Scholar

50. Extra-territorial application of criminal provisions is more objectionable than that of civil provisions, because it is coercive and involves application of the law of the state claiming jurisdiction rather than its choice of law rules: Jennings, R.Y., The Limits of State Jurisdiction, 23 BYIL, (1957) p. 146Google Scholar. Injunctions, being ultimately backed up by criminal sanctions, are akin to penal provisions.

51. Lotus Case, supra n. 45.

52. Canadian Shipping Act 1934 s.8 (as amended in 1970); Netherlands Commercial Code, amended in 1922 and 1926, Art. 314; UK Merchant Shipping Act (1894) s.3. UN Legislative Series “Laws Concerning Nationality of Ships” 1955 and 1956 ST/LEG/SKR B/5 and 8.

53. This “Moscow” Treaty arguably led to the development of a customary norm against atmospheric tests, but this is rendered very doubtful by the refusal of two of the six or seven states, which have conducted tests, France and China, to adhere to it, and the power to withdraw.

54. Margolis 64 YLJ (1955) p. 629; Kiss 4 Denver JIL (1974);Cervcnka 29 Annuaire de 1'AAA (1959) p. 187; Rodière and Remond-Gouillet, supra n. 26 at 96.

55. Unpublished article of author. A restricted zone is one closed to ships and aircraft by a legislative or administrative decision of the testing state. What is an excessively large test is uncertain, and must be determined by reference to state practice.

56. A number of less successful protest voyages were made by Greenpeace and others. In June 1958 an American crew sailed the yacht “Golden Rule” into the US zone around the Christmas Island test site; they were arrested, prosecuted and sentenced to 60 days' imprisonment; the USA clearly had jurisdiction as their flag and national state. On the “Greenpeace I” expedition in 1971 a twelve-man all-Canadian crew sailed the Canadian ship “Phyllis Cormack” towards the US underground test site at Amchitka in the Aleutians. They were arrested, after stopping to rest on a small island, for crossing the American border illegally and not making customs declarations contrary to the Tariff Act 1932 (19 USC 1433 and 1435), and were threatened with US $1000 fines and confiscation of property if they did not return to a customs office 200 miles in the wrong direction: Meziere, R. and Hunter, R.Greenpeace McClelland and Stuart, Toronto (1972)Google Scholar. They were, therefore, dissuaded from continuing to the zone. Her replacement, the “Edgewater Fortune” did not reach the zone either, nor did the “Boy Rual” the “Ramure” and the “Magic Isle”, which tried to follow the “Vega” into the French zone in 1972. Few of the ships which set out reached French the zone in 1973 and 1974: “McTaggart” at pp. 212–3, 223, 254–5 and 325.

57. “McTaggart” at pp. 87, 95–6, 142 and 154. In addition her messages were jammed and false messages, it is alleged, were sent by the French: ibid, at 96–9 and 159.

58. Ibid, at pp. 128–139.

59. Ibid, at p. 147.

60. Ibid, at pp. 172–7.

61. Ibid, at p. 200.

62. Ibid, at pp. 195 and 207–11.

63. Ibid, at p. 212.

64. “The Kate A. Hoff” Claim, US v. Mexico, , Opinions of Commissioners (1929) 174Google Scholar; 23 AJIL (1929) p. 860.

65. Enacted by Decret Loi, 4.7 1973.

66. Nuclear Tests case, ICJ Rep. (1974) p. 1.

67. There is photographic evidence of this: “McTaggart” at p. 278.

68. Ibid, at pp. 285–301 and 305.

69. Ibid, at pp. 310–1.

70. Three boarding lines were cut; several fights broke out; one man, who tried to remove a tow rope, was thrown on his back; a woman was pulled from the rigging; a third person, who tried to swim away, was pulled out of the water: Ibid, at p. 255 and Peace Press January-February 1974, at pp. 11–13.

71. “McTaggart” at p. 266; Peace Press. ibid., at p. 18; and Peace 1983 Calendar, supra n. 4.

72. “Me Taggart” at p. 267; and Shaw, E., French Polynesia – The Nuclear Tests – 1767–1980. A Chronology. (Greenpeace New Zealand 1980).Google Scholar

73. “McTaggart”, at p. 367, points out that the Procurer, speaking for the French government in the case of McTaggart v. France before the Cour d'Appel on 13 June 1976, admitted this in open court.

74. Greenpeace, Nuclear Weapons Tests: Briefing Document (1982) made available to author by Elaine Shaw of “Greenpeace III”, Paris; and Times 7 December 1981 p. 4f.

75. See supra n. 38 and Whiteman, 8 Digest (1967) pp. 706–738 and 863–885.Google Scholar

76. “McTaggart” at p. 81 and photograph at p. 86.

77. Ibid, at pp. 17, 44, 63 and 253.

78. Ibid, at pp. 39 and 42.

79. Ibid, at p. 39.

80. Ibid.

81. New Zealand Shipping and Seamen Act No. 49, 23 October 1952, esp. ss. pp. 385–6.

82. “McTaggart” at p. 32.

83. The only warships likely to have been in the area were US, UK and Soviet vessels secretly monitoring the tests: Peace Press, op. cit., at p. 3, and “McTaggart” at pp. 113–4, 202 and 233.

84. Minister of External Affairs, Mitchell Sharp's statements before the Canadian House of Commons, 19, 20, 23 and 24 June 1972: “McTaggart” at pp. 114–5, 119, 144–5 and 150.

85. Ibid., at p. 337 citing a Confidential Report from Admiral Claverie, commander of the French testing programme, to the director of the Centre of Nuclear Testing and general of the French air force, 23 August 1973; the Canadian Government denied this: ibid, at pp. 338–9.

86. The Minister of External Affairs replied to a Parliamentary question that he intended to make representations to France “on behalf of Greenpeace III”: H.C. Deb. 5 February 1973; Canadian YIL (1974) p. 329.

87. In an action against the French government, he obtained from the Tribunal de Grande Instance an order on 13 May 1975 for damages with respect to the deliberate collision in 1972, but only in the same amount as that offered ex gratia by the French Government before the case, $5000. $21000 was claimed. The court, moreover, followed the Procurer's advice that the 1973 incident was excluded from its competence by the defence of “exceptional circumstances”. The Courd'Appel upheld the judgement on 13 June 1976: “McTaggart” at pp. 350–3 and 364–7.

88. CHS Art. 22.

89. She is not caught by CHS Art. 6(2).

90. That affront to the flag is a ground for recovery in international law is suggested by The “I'm Alone” Case (1935) 3 RIAA 1609: Harris Cases and Materials on International Law” (1973) at p. 399.

91. “McTaggart” at p. 110; Radio Australia News 17 June 1972.

92. In addition to the original French crew members, who included Brice Lelonde, General Bolladiere and three other members of the French “Peace Commando” group joined the “Fri” on 15 July, 1981: E. Shaw, French Polynesia, op.cit.

93. Peace Press op. cit., at p. 14, upon inquiries being made to the US Coastguard.

94. The US Victory ship “Wheeling” was probably monitoring the 1972 tests: “McTaggart” at pp. 113–4 and 202.

95. But if this were the case, the “Otago” would possibly have offered to help the “Vega”.

96. Japan and Norway have recently exercised their right to veto the ban on commercial whaling planned to commence in 1986.

97. Newsweek 18 September 1978. On another occasion in 1979 protesters illegally boarded a whaler and chained themselves to the harpoon.

98. The whaler may also have refrained from firing on the second occasion, because it became clear that it might have been in breach of the US-USSR Agreement and Protocol on the Prevention of Incidents On and Over the High Seas 1972–3, TIAS 7379; 23 UST 1168: reproduced II NDLOS 529 and IV NDLOS 285.

99. Economic Zone Law No. 15–78 of 20 February 1978, Boletino Oficial de Estado, Gaceta de Madrid, No. 46.

100. Icelandic Law No. 41 of June 1979 concerning the Territorial Sea, Economic Zone and Continental Shelf.

101. Arts. 1(2)(a) and 3 of the Spanish Law talk in terms of exclusive Spanish rights to fishing in the zone, which is inconsistent with Art. 56 CLOS and its IWC obligations assumed in 1979.

102. Guardian 17 August 1978 and International Herald Tribune 27 August 1980.

103. Greenpeace Press Report, Paris, 23 September 1980.

104. Statement of Spanish Naval Authorities, 8 November 1980; Biggleswade Chronicle 11 July 1980.

105. Letter of the captain to Alan Thornton, Director of Greenpeace UK, 19 August 1980.

106. Supra n. 103.

107. Bay of Plenty Times (Australia) 26 June 1980.

108. Letter from Mr. Wilkinson, Director of Greenpeace UK, to author 15 December 1982.

109. “El que sin estar legitimamente autorizado impediere a otro con violencia hacer lo que la ley no prohibe o le compliere a effectuar lo que no quiera, sea justo o injusto, sera casti-gado con las penas de arresto mayor y multa de 5.00 a 50.000 pesetas.”

110. It is unlikely that the Spanish were alleging only that the inflatables harassed the whaler and so trying to prosecute foreign nationals for endangering their own lives at sea. It is also doubtful that the penalties were higher under Art. 496 than the EEZ law, and that they chose to rely on it for this reason.

111. Greenpeace claims to have documentary evidence of this from workers within Spain's whaling industry; so too does the Sea Shepherd Fund.

112. This is widely practised and generally accepted as legal by navies. The only protest on record was made by the USSR in 1967: Rousseau, , Chronique des Faits Internationaux, 722 RGDIP (1968).Google Scholar

113. £60.000; this represented the value of two whales, on the assuption that harassment had prevented whaling for two days, and one whale would have been caught on each day; Greenpeace assert that one whale had already been caught, so that there was room for only one more. It also greatly exceeds the maximum fine imposable.

114. Letter to Alan Thornton, op.cit.

115. El Ideal Gallego 11 November 1980 p. 5; El Pais 19 November 1980.

116. House of Lords Debates 9 September 1980, p. 1168.

117. Supra n. 38.

118. The details in the text are taken from the Greenpeace report at the time.

119. Whiteman, Digest pp. 706–738.Google Scholar

120. Report of Pat Birnie of Edinburgh University and opinion of H. Olafsson, Greenpeace's lawyer.

121. International Herald Tribune 27 August 1980.

122. The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters, December 1972.

123. The Oslo Convention on the Prevention of Pollution by Dumping from Ships and Aircraft, February 1972.

124. From 15 February 1983.

125. Belgium, Denmark, Finland, France, Federal German Republic, Iceland, the Netherlands, Norway, Portugal, Spain, Sweden, UK. For text see 11 ILM (1971) p. 262.

126. It excludes the Mediterranean and Baltic Seas.

127. Ireland was absent and Poland and the USSR refused to attend, because the German Democratic Republic was not invited. Its norm-creating effect is, therefore, reduced.

128. Although parties may, it seems, under this Convention licence vessels through international organisations as well as their own national authorities, permits are still to be issued in the case of national vessels loading waste abroad (Art. 6(2)(b)).

129. One rare example of protest, though not technically an international protest by a state, arises from the expressions of self-determination by Micronesian peoples in referenda and negotiations over new constitutions to modify the US Trusteeship administration. They have asserted their opposition to proposals in 1980 to permit Japanese dumping of 10000 barrels of radioactive waste in the Northern part of Micronesia: NYT 16 July 1980 (concerning the Republic of Palau constitution) and talk by Roman Bedor of the Pacific Conscience Research Centre, in Durham on 10 February 1983.

130. Written plca upon the application for an ex parte injunction in 1980.

131. Details from “Rainbow Warrior's” log 1979.

132. [1979] 1 QB 529, per Lord Denning MR at 555–9 and Shaw LJ at 575–9.

133. The injunction was not granted, because the application referred by mistake to dumping as “authorised by licences used for 1980”, whereas the 1980 dumping had already been completed and 1981 dumping alone was at issue.

134. Stichting Greenpeace Nederland, Stichting Greenpeace International and Stichting Greenpeace Council, all established at Amsterdam, and Greenpeace (Ltd) established in London and Aberdeen.

135. Judgments of 26 August 1982. KG (1982) No. 154. See also infra p. 424 n. 155.

136. United Kingdom Atomic Energy Authority v. Greenpeace, KG (1982) No. 161.

137. Studiecentrum voor Kernenergie et al. v. Greenpeace, KG (1982) No. 162.

138. Supra n. 51.

139. 1956 (II) ILC Yearbook 285; The Araunah (1888) Moore, , Arbitrations p. 824Google Scholar; The Grace & Ruby (1922) 283 Fed 475; The Henry L. Marshall (1923) 292 Fed 486.

140. The Costa Rica Packet Case: Moore, International Arbitrations, V at p. 4948. A British merchantman's captain was detained, when he happened to come within Dutch jurisdiction, upon a charge of having maliciously appropriated the contents of a waterlogged derelict prauw, a small vessel of Dutch origin; as a result his ship's voyage was broken up. The arbitrator in the subsequent case, De Martens, held that the prauw had been boarded on the high seas and that, since ships were to be treated as floating pieces of territory, the jurisdiction of the flag state of the appropriating vessel alone applied. The Dutch nationality of the prauw was held not to have been established. This finding and discussion of the issue whether abandoned vessels remain subject to flag state jurisdiction suggests that small boats do carry that jurisdiction. On the other hand, small vessels launched from ships may be different from small vessels normally operated independently (as the prauw may have been). The fact that De Martens did not consider that Dutch jurisdiction arose by virtue of the “effects” of the British acts of appropriation on the prauw, was explained by the majority in the Lotus Case (supra n. 45) on the ground that he was influenced by the fact that the vessel was derelict, but may equally have been the result of lack of clear evidence of nationality.

141. Ibid.

142. The ship may need to follow a straight course anyway for the safety of the crew offloading the barrels and to ensure dispersal of the waste along the length of a long, narrow dumping zone.

143. 435 US 151, 55 L Ed 2d 179, 98 S Ct 988. It was unconstitutional under the federal law supremacy clause of the Constitution, Art. 6, cl. 2, since it clashed with the Federal Ports and Waterways Safety Acts 1972.

144. Lt. Cmdr. J. McElwain: Press Conference at Vancouver, 22 January 1981 and Seattle Times 17 December 1980.

145. US Coastguard statement, cited in W. King Seattle Times 31 January 1981.

146. Press Conference ibid: 188 000 DWT; Seattle Times 17 February 1980: 195 000 DWT.

147. Either 500 yards (Press Conference) or 2,000 yards (King, supra n. 145) in circumference.