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International law and direct action protests at sea: twenty years on*

Published online by Cambridge University Press:  07 July 2009

G. Plant
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In a young man's article appearing in this Yearbook in 1983, the author discussed certain law of the sea and other aspects of ‘direct action’ protests carried out at sea by peace or environmentalist non-governmental organisations (NGOs). Since that article was written, the objects and frequency of such protests have greatly expanded, the legal underpinnings in human rights law of a ‘right of peaceful public protest’ have been further affirmed and clarified and a body of state practice has emerged concerning the limits of and controls that may be placed upon the exercise of that right at sea, and upon the exercise of international rights of navigation or overflight for the purposes of public protest. Since 11 September 2001, moreover, the international community's increased concern with terrorist threats has put in question the compatibility of maritime direct action protests with: (i) the security of each ship subjected to such a protest (‘target ship’); and (ii) the security of the next port of call of a target ship which has been boarded and ‘occupied’ at sea by NGO protesters, whether or not they are still aboard her when she approaches port.

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Articles
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Netherlands Yearbook of International Law , Volume 33 , December 2002 , pp. 75 - 117
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Copyright © T.M.C. Asser Press 2002

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References

1. Plant, G., ‘Civilian Protest Vessels and the Law of the Sea’, 14 NYIL (1983) p. 133.CrossRefGoogle Scholar

2. Cf., Appendices infra, and IMO doc. MSC 75/17/45, 12 April 2002, para. 2.

3. In MSC 75/17/45, ibid., Cyprus and Malta proposed (unsuccessfully) that the IMO Maritime Security Conference of 9–13 December 2002 adopt a resolution calling upon the Organization to develop requirements for protesters to desist from demonstrations that might pose a threat to maritime safety in general and in particular, in the light of the events of 11 September 2001, to the security of a vessel or port facility. Such a resolution would be binding, as a matter of internal IMO institutional obligation, on NGO Observers to the IMO, including (subject to the 23rd Assembly's confirmation, in November 2003, of the decision of the 60th Council, in June 2003, to remove its consultative status) Greenpeace International. See further infra Section 5.

4. This term should be regarded as broader than the flag state of the target ship. It extends to all the states with an interest, economic or otherwise, in the conduct of that activity, including, where appropriate, a coastal state in whose waters a target ship is permitted or licensed to operate.

5. E.g., private protest yacht flotillas, spaced several nautical miles apart, formed a symbolic protest line in the high seas segment of the Tasman Sea across the path of shipments of highly radioactive MoX fuel between Western Europe (France and UK) and Japan, in 2001 and 2002 (when a Greenpeace ship joined the flotilla: see infra n. 101) to protest against the fuel's passage by ship through that sea, or at all.

6. E.g., a Greenpeace ship followed the 1995 shipment of highly radioactive waste from Western Europe to Japan along its entire route: see <http://archive.greenpeace.org/~comms/1.html> to </56.html> (sites visited 16 July 2002).

7. The Soviet/Russian authorities attempted to take at-sea enforcement measures against efforts by ships of Greenpeace (1983) and Sea Shepherd (1981 and 1997) to gather evidence about whaling within its territorial waters, as did the Faroese (Danish) authorities against a Sea Shepherd ship seeking to document the scale of the 1986 territorial waters small cetacean hunt. The USSR also arrested Greenpeace anti-nuclear protesters at sea, in 1990, for entering its nuclear test site zone around Novaya Zemlya and taking water samples for analysis: Brown, G., Greenpeace (Watford, Exley Press 1993) at p. 183.Google Scholar

8. The flotillas of private boats participating, since 1998, in the annual days of protest against the prospect of increased volumes of Caspian Basin or Russian oil passing through the Turkish Straits, fill the narrow Bosporus. They thus prevent the transit of large vessels, including oil tankers, through sheer numbers, whether the protesters intend this or not. By contrast, the flotillas referred to in n. 5 supra were confined to a symbolic role by the sheer breadth of the sea area through which the target ships were passing incognito, and they were able to switch to direct action only where good surveillance and vessel speed enabled them to locate and approach those ships. See further n. 101 infra.

9. See e.g., nn. 5 and 8 supra.

10. See e.g., Hurley, P., The Greenpeace Effect (London, Macmillan 1991) pp. 33–34Google Scholar (30, largely Danish fishing boats joined a Greenpeace ship, in 1987, in protest against a hazardous waste incineration ship, which the fishermen were convinced was harming their stocks).

11. The details of Greenpeace's and Sea Shepherd's organisation, activities and claims given below are invariably documented on, respectively: the main Greenpeace International web-sites, <http://www.greenpeace.org> and <http://archive.greenpeace.org>, or the linked Greenpeace websites; and the Sea Shepherd International web-site, <http://www.seashepherd.com>, or the linked Sea Shepherd sites. See also US ONI/CMAD, Worldwide Threat to Shipping. Mariner Warning Information, available on-line at <http://pollux.nss.nima.mil/MISC/wwtts>, and in particular paras. 4N and 5N of post-2001 editions.

12. Details of the main direct action protests against ship-based activities are set out in Appendices 1 and 2 below.

13. Details of the most significant sea-based direct action protests involving no target ship are described in Appendix 3 below.

14. Some of these protests can be seen as directed against the freedom of navigation understood lato sensu to include naval exercises and manoeuvres, e.g., those against submarine-based ballistic missile tests by the USA (twice in 1989) and the UK (1994) discussed at pp. 107–109 infra. Most, however, are merely against the exercise of international navigation rights stricto sensu, and conducted because of the nature of die ships’ design, armament, intended use or cargo. Details of the main actions are set out in Appendix 2 below.

15. Greenpeace's view of what the law requires sometimes differs from that which states will normally take. For example, it appears to interpret Art. 65 1982 UN Convention on the Law of the Sea (LOSC) (Montego Bay, 10 December 1982. 21 ILM (1982) 1245: 142 Parties as at 11 April 2003) to require whaling states to co-operate ‘with’, rather than ‘through’ the IWC, for the preservation, management and conservation of large cetaceans. In addition, notwithstanding its expulsion of Paul Watson, in 1977, for throwing commercial sealers' property (clubs and harvested skins) into the sea during a protest, in breach of Canadian criminal law (see Hunter, R., The Greenpeace Chronicle (London, Picador 1980) at p. 732Google Scholar), it sometimes displays a relaxed concept of'property’. After a Greenpeace protester cut free a whale harpooned by a Norwegian whaler in Norway's EEZ and attempted to take the harpoon, the Foundation awoke only during the subsequent civil proceedings to the fact that the harpoon and the whale (which had been hauled in, severely injured, and was being ‘finished off’ with rifle fire), were die whaler's property under, and protected by, Norwegian law: see Enghaugen v. Greenpeace, Dalane Herredsrett, 9 March 1995, further described in n. 94 infra.

16. In Stichting Greenpeace Nederland and Stichting Sirius v. Vulcanus II Shipping Company and Ocean Combustion Services (‘Vulcanus II’), Greenpeace argued before the Netherlands Court of Appeal at The Hague that its activists ‘must be given great freedom of action in society, because they represent a public interest to which ever higher priority is being assigned nationally and internationally, and that they may therefore carry out actions such as [boarding and occupying a waste incineration ship at sea] even if they result in damage to others’: NIPR (1988) No. 149, affd. NIPR (1990) No. 281, 12 December 1989; KG (1990) No. 44; S & S (1990) No. 127 (C of A The Hague) (translation in 22 NYIL (1991) p. 449). As to the human rights point implicit in this argument see Section 1.3 infra. As to the Court's rejection of the argument, see infra n. 90.

17. For a rare example, see Greenpeace Press Release, 12 June 2002 (alleging denial of access to consular officials or lawyers by Swedish police detaining two direct action protesters on suspicion of ‘aggravated trespass’ when occupying a Swedish ship, the M/V Fagervik blockaded in port by Greenpeace, which suspected her (despite earlier acquittals in Swedish criminal proceedings) of unlawfully dumping oil in the Baltic Sea. The human rights argument does not appear to have substantially affected the result in subsequent proceedings before the Norrköping Tingsrät, on 27 June 2002, where the court imposed suspended sentences and fines on several protesters, including the two in question, and awarded substantial damages to the ship-owner.

18. Daily Telegraph feature of Paul Watson, 19 April 2001, and Sea Shepherd home page.

19. E.g., it appears to regard IWC resolutions on whale conservation as binding, even if they are not adopted unanimously and regardless of individual states’ objections or ‘reservations’. It also appears to regard UNGA Res. 46/215, 20 December 1991, condemning large-scale pelagic drift-net fishing, to be binding upon all states. Although the resolution has been reaffirmed in UNGA Res. 51/36, 9 December 1996, 52/29, 26 November 1997, 53/33, 24 November 1998 and 57/142, 12 December 2002, on each occasion without a vote, it does not appear to be binding under international law. See also, concerning Sea Shepherd's controversial views on the ‘illegality’ of the Faeroe Islands' (Danish) annual hunt of small cetaceans within their territorial waters, High North News, 11 July 2000, available at <http://www.highnorth.no/news/nedit.asp?which=250> (site visited 16 July 2002).

20. I.e., sinking or severely damaging, on occasions by secret use of limpet mines.

21. The pro-whaling NGO, High North Alliance, alleges that ‘Sea Shepherd conclude[d in 1993] that the organisation has sunk 8 ships and rammed and damaged a further 6’: High North News Extra (No. 7, 10 April 1994), reproduced at <http://www.highnorth.no/Library/Movements/Sea_Shepherd/se-sh-re.htm> (site visited 16 July 2002). For examples see Plant, op. cit. n. 1, at p. 139.

22. E.g., in the following countries: (i) Denmark (Mr. Watson convicted in absentia for entering Faeroese territorial waters in breach of a prohibition order, during the 2000 small cetacean hunt): (ii) Norway (Mr. and Mrs. Watson convicted in absentia for attempts, in 1992 and 1994, to scuttle Norwegian whaling vessels in their home ports: Lofoten Herredsret, 3 June 1994; Germany and the Netherlands requested, in 1997, to institute extradition proceedings against Mr. Watson: High North Web News, 23 April, 1 May and 26 June 1997 at <http://www.highnorth.no/Library/Movements/Sea_Shepherd/pa-wa-re.htm, /no-wh-ve.htm and /pa-wa-se.htm> (sites visited 16 July 2002). As to the (unsuccessful) Dutch extradition proceedings, see Public Prosecutor v. P.F.W., District Court of Haarlem, 9 June 1997, Institute's Collection No. 4591, in 30 NYIL (1999) at p. 298); (iii) Portugal: see author's earlier article, at 141; and (iv) Taiwan: see Republic of China Press Release no. 127, 3 July 1991 (English translation in 10 ChYIL. (1990–1991) at p. 337).

23. In 1990, Iceland expelled Mr. Watson and declared him persona non grata.

24. When boarding and occupying a ship, protesters will typically chain themselves to equipment instrumental in the conduct of an activity being protested against, such as a whaling harpoon, in order to hinder its use, or to the ship's superstructure or equipment. On occasions, in doing so, they enter a survival capsule from which it is difficult to remove them.

25. See esp. USSR-USA Agreement on the Prevention of Incidents on and over the High Seas, Moscow, 25 May 1972. 852 UNTS 151, 23 UST 1168, TIAS 7379, 11 ILM (1912) 778, and 1973 Protocol, Washington DC, 22 May 1973. 24 UST 1063, ND IV, p. 285; also USSR-USA Agreement on the Prevention of Dangerous Military Activities, Moscow, 12 June 1989. 28 ILM (1989) 877.

26. Sea Shepherd has secured several agreements giving its ships local, state and national governmental authority respectively to patrol the fisheries conservation waters of: the Galapagos Islands Marine Reserve (‘IMR’) (Ecuador) (2000); the State of Rio (Brazil) (2000); and Trinidad and Tobago (1990). Since March 2001, for example, a Sea Shepherd ship, manned by National Park Rangers and naval personnel, accompanied by a Sea Shepherd observer, has arrested a number of vessels for illegal fishing in the Galapagos IMR. On the other hand, opposition elements in those countries’ authorities sometimes undermine this delegated authority: see infra n. 91.

27. Sea Shepherd ships and crews exercising delegated governmental authority are an exception.

28. While seeking to place constraints on NGO maritime protests, Cyprus and Malta recognised that ‘[t]he right to peaceful and innocent protest is a fundamental right enshrined in basic human rights’: IMO doc. MSC 75/17/45, supra n. 2, at para. 1.

29. Goodrick, R., ‘The Right of Peaceful Protest in International Law and Australian Obligations under the International Covenant on Civil and Political Rights’, The Right of Peaceful Protest Seminar, Human Rights Commission, Occasional Paper 14, Canberra, 3–4 July 1986, AGPS, Canberra, 1986, p. 230.Google Scholar

30. Arts. 19 and 20: 1948 Universal Declaration of Human Rights (UDHR); Arts. 19(2) and 21: 1966 International Covenant on Civil and Political Rights (ICPR); Arts. 10(1) and 11(1): 1950 European Convention on Human Rights and Fundamental Freedoms (EHR); Arts. IV, XXI and XXIV: 1948 American Declaration of the Rights and Duties of Man (ADRD); Arts. 13 and 15: 1969 American Convention on Human Rights (AMR); Arts. 9(2) and 11: 1981 African Charter on Human and Peoples’ Rights (AFR); and Arts. 11(1) and 12(1): 2000 Charter of Fundamental Rights of the European Union (CEU).

31. Over 140 in 1978, according to van Maarseveen, H. and van der Tang, G., Written Constitutions: a Computerised Comparative Study (Dobbs Ferry, Oceana, 1978) at pp. 105, 110Google Scholar. See also Jones, T., Human Rights: Group Defamation, Freedom of Expression and the Law of Nations (The Hague, Martinus Nijhoff 1998) at p. 40.Google Scholar

32. Handyside v. UK, ECHR, 7 December 1976; Rassemblement Jurassien et Unité Jurassien v. Switzerland (1978), European Commission of Human Rights, 10 October 1979; also Olmedo Bustos et al. v. Chile, Inter-American Court of Human Rights, 5 February 2001, paras. 68 and 69.

33. Cf., R. Burnett, ‘The Right of Peaceful Protest in International Law’, in Human Rights Commission, op. cit. n. 29, at pp. 253 and 262.

34. Higgins, R., Problems and Process: International Law and How We Use It (Oxford, Clarendon, 1994) at p. 98.Google Scholar

35. Ezelin v. France, ECHR, 26 April 1991, at para. 62 (cf, NAACP v. Alabama ex rel Patterson, 357 US 449, and Roberts v. US Jaycees, 468 US 609, 622).

36. Only Art. 11 AFR, among the international human rights instruments, omits this adjective.

37. A non-violent ‘sit-in’ blocking the entrance to an American army barracks in Germany was held to be peaceful, so that interference with it required justification under Art. 11(2) EHR: G. v. FRG, 60 D.R. 256, 263 (European Commission of Human Rights, 6 March 1989).

38. Ibid.

39. Steel and Others v. UK, ECHR Chamber, 23 September 1998, 3 IELR 688, 699.

40. Harris, D.O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights, (London, Butterworths 1995) at p. 420.Google Scholar

41. In Steel v. UK, op. cit. n. 39, the ECHR Chamber appears to have been so influenced (breach of Art. 10 EHR found when three demonstrators protesting against the sale of fighter helicopters by handing out leaflets and holding up banners at a sales conference arrested and detained for seven hours before being brought before a court, where charge not pursued by prosecution and dismissed by court. No breach of Art. 10 found in separate cases of two demonstrators who had physically impeded lawful activities, as follows: (i) demonstrator walked in front of armed member of grouse shoot during hours’ long demonstration, thereby physically preventing him from firing, arrested and detained for 44 hours before being brought before court and found to have been in breach of the peace or likely to provoke a breach of the peace; (ii) demonstrator stood under bucket of mechanical digger near end of day during which 20–25 protesters repeatedly obstructed road-building work, arrested, detained for 17 hours before being brought before court and found to have been in breach of the peace or likely to provoke a breach of the peace).

42. Cf., Higgins, op. cit. n. 34, at p. 102. It appears to be for this reason, however, that no reliance may be placed by NGOs on Art. 9 EHR (‘freedom of thought, conscience and religion’). Although this is comparable to Art. 11 EHR in being lex specialis in relation to Art. 10, and has been held to apply to single issue pressure groups, it is unlikely that it applies to environmentalist or peace activist NGOs, unless perhaps their members’ commitment derives from coherent and strongly held eco-centric or pacifist philosophies: cf., Plattform ‘Ärzte für das Leben’ v. Austria, 44 D.R. 65, and Evans, M., Religious Liberty and International Law in Europe (Cambridge, Cambridge UP 1997) at pp. 289–291.CrossRefGoogle Scholar

43. Plattform ‘Ärzte für das Leben’ v. Austria, supra n. 42.

44. E.g., in 1986, a UK fisheries protection vessel warned Danish fishermen chasing a Greenpeace protest ship into British territorial waters with threats of violence, that they were not in innocent passage and asked them to leave; and the master of a Norwegian whaler was convicted of recklessly firing three shots in the direction of and hitting a manned Greenpeace inflatable acting as a ‘human shield’ to a harpooned whale which he was ‘finishing off’ with his rifle: Statsadvokat v. Myklebust, Stavanger Byrett, 23 November 2000.

45. Plattform ‘Ärzte für das Leben’, supra n. 42.

46. Cf., n. 90 infra.

47. Higgins, R., ‘Derogations under Human Rights Treaties’, 48 BYIL (1976–1977) p. 281Google Scholar. Cf., Soering v. UK, ECHR, 7 July 1989, para. 89.

48. Others are: reservations to human rights treaty provisions; derogations to human rights obligations in circumstances of war or public emergency; the lawful parameters inherent in each human rights treaty clause; and the doctrine of ‘abuse of rights’: Higgins, ibid.

49. Arts. 19(3) and 21 ICPR; Arts. 10(2) and 11(2) EHR; Arts. 13(2), (4) and (5) and 15 AMR. Cf., the qualification ‘within the law’ in Art. 9(2) and the clawback clause in Art. 11 APR, but also the general qualification clauses in the non-binding instruments: Art. 29(2) UDHR, Art. XXXIII ADRD and Arts. 51–54 CEU. The catalogue of grounds justifying restrictions on the freedom of assembly ‘has in common, for all the four treaties, the four items of national security, public safety, health and the rights and freedoms of others. To this [AFR] adds “ethics” and the others add “morals”; ICPR and AMR add “public order”, and EHR instead adds “the prevention of disorder or crime”’ [which is broader: cf., Burnett, loc. cit. n. 33, at p. 254]: Sieghart, P., The International Law of Human Rights (Oxford, Clarendon 1983) at p. 341Google Scholar. These restrictions must be provided for by statute or case-law and be ‘necessary’ (AFR) or ‘necessary in a democratic society’ (the other instruments). In respect of restrictions on the freedom of expression, the AFR merely uses the phrase ‘within the law’, and only three restrictions are common to the other three treaties: national security, health and morals and the rights and reputations of others. ICPR and ADR add two more and EHR seven more. These too must be provided for by law and be ‘necessary’ (the EHR adds ‘in a democratic society’): ibid., pp. 329–330.

50. Handyside v. UK, supra n. 32, at para. 49.

51. Ibid., paras. 48–49, and Chorherr v. Austria, ECHR, 25 August 1993, Series A No. 266-B, p. 37, § 31.

52. O'Donnell, T.A., ‘The Margin of Appreciation Doctrine and Standards in Jurisprudence of the European Court of Human Rights’, 4 HRQ (1982) pp. 474–507.CrossRefGoogle Scholar

53. According to Nowakj, M., ‘non-violent forms of civil disobedience are peaceful assemblies, so long as their participants do not use force or exercise active opposition’: ‘Civil and Political Rights’, in Symonides, J., ed., Human Rights: Concepts and Standards (Paris, UNESCO/Dartmouth, Ashgate Publ. 2000) pp. 69, 94Google Scholar. As to the nature of civil disobedience, and the broader concept of satyagraha, see Gandhi, M., Young India (Madras, Ganesan Ltd. 1922) Vols. I and III.Google Scholar

54. Cf., the argument set out in n. 16 supra.

55. Burnett suggests that an international right to exercise such disobedience is inchoate at best: loc. cit. n. 33, at p. 243.

56. Ibid., at pp. 246–252.

57. See further infra at pp. 91–94.

58. Art. 2 1958 Convention on the High Seas, 29 April 1958, 450 UNTS 11, ND I, p. 257 (62 Parties); Arts. 87(2) and 58(3) LOSC.

59. According to Cyprus and Malta, ‘[c]onsiderable doubts have been expressed, on various occasions in the past, on whether such demonstrations are conducted in a manner which is consistent to [sic] established maritime safety treaties such as … the collision avoidance regulations’: IMO Doc. MSC 75/17/45, supra n. 2, para. 1. As to ‘abuse of rights’, see text at n. 143 infra.

60. Convention on the International Regulations for Preventing Collisions at Sea, Annex, London, 20 Oct. 1972. 1977 UKTS 77, 28 UST 3459, TIAS No. 8587 (the ‘1972 Convention’). Amendments by IMO Res. A.464(XII), A.626(15), A.678(16), A.736(18) and A.910(22). All protest vessels used to date have fallen within the definition of ‘vessel’ in Rule 3(a), and so have been bound to comply with the 1972 Colregs in sea areas where they apply (the vast majority).

61. As of 31 May 2003, 142 states, representing 97.3% of registered world merchant ship tonnage, are Parties to the 1972 Convention, and it is indisputable that the Colregs represent generally accepted international standards to be complied with by all ships. Cf., also Arts. 39(2)(a) and 21(4) LOSC.

62. G. v. FRG, supra n. 37; Ezelin v. France, supra n. 35.

63. Cf., Kristiansand Byrett's decisions of 3 September 1998 and 1 March 2000.

64. Greenpeace-owned or operated ships have had a wide variety of nationalities, although at present Greenpeace International's four permanent ships are owned by Dutch subsidiaries and registered in the Netherlands. While Sea Shepherd has used vessels of more traditional registries, such as those of Canada and the UK, recently it has also used open registries, such as those of Belize and Cayman Islands (UK).

65. Supra n. 15. Cf., the US statement cited in n. 87 infra.

66. Mann, F.A., ‘Reflections on the Prosecution of Persons Abducted in Breach of International Law’, in Dinstein, Y. and Tabory, M., eds., International Law at a Time of Perplexity: essays in honour of Shabtai Rosenne (Dordrecht, Nijhoff 1989) p. 407Google Scholar; also Mann, F.A., Further Studies in International Law (Oxford, Clarendon 1990) at p. 346Google Scholar; but see State v. Ebrahim [1991] 2 S.Afr.LR 553(a).

67. Art. 3 UDHR, Art. 9(1) ICPR, Art. 5(1) EHR, Art. 1 ADRD, Art. 7(1) AMR and Art. 6 AFR all provide that everyone has the right to liberty and security of person. Art. 9(1) ICPR adds ‘No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’ Art. 5(1) EHR continues with similar language, but actually specifies six grounds. The Art. 7(2) AMR and Art. 6 AFR equivalents are expressed in terms of ‘reasons’ and ‘conditions’ previously laid down in law. The master of the ship might well have authority to effect a lawful arrest or detention under the law of the flag state. The master of a British ship, for example, may, under S. 105 Merchant Shipping Act 1995, lawfully ‘place under restraint anybody on his vessel for so long as it appears to him to be necessary or expedient in the interests of safety, good order or discipline on board ship’, if it is assumed that that provision is substantively and procedurally in compliance with the requirements of the ECHR: R. v. Governor of Brockhill Prison, ex p. Evans (No. 2) [2000] 3 WLR 843 (H.L.), per Lord Hobhouse, at p. 887.

68. Cf., US v. Younis 924 F.2d 1086 (DC Cir. 1991).

69. Cf., Ker v. Illinois (1886) 119 US 436.

70. Cf., Brownlie, I., Principles of International Law, 5th edn. (Oxford, Oxford UP 1998) at p. 318.Google Scholar

71. If the flag state were to seek extradition, it might need, for example, to argue that references in an extradition treaty to its ‘territory’ extend (in the context of identifying extraditable offences committed in that territory) to cover offences taking place on board ships of its nationality: cf., R. v. Governor of Brixton Prison, ex parte Minervini [1959] 1 QB 155, and Schtraks v. Government of Israel [1964] AC 556 (H.L.); but cf., also In Re Ning Yi-Ching (1939) 56 TLR 3.

72. John Castle v. Mabeco (Cour de Cass.), 1986, 77 ILR 537. The court reasoned (unconvincingly) that Greenpeace's ends were private, because they were ‘in furtherance of a personal point of view on a particular problem’, rather than in the interests or to the detriment of a state or state system.

73. No other court appears to have pursued this line of reasoning. Indeed, the Belgian court's reasoning applied more generally might have led to draconian consequences for the ‘pirate’ protest ship in question, including her seizure and the prosecution of her crew for piracy iure gentium by any state. The Court appears to have erred in making excessively broad interpretations of the terms ‘violence’ and ‘private ends’. In this regard, it is interesting to note the understanding of the Parties to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Rome, 10 March 1988 (‘SUA Convention: 89 Parties, not including Belgium, as at 31 May 2003) which is closely connected to the concept of piracy iure gentium (see Halberstam, M., ‘Terrorism on the High Seas: the Achille Lauro, Piracy and the IMO Convention on Maritime Safety’, 82 AJIL (1988) p. 269).CrossRefGoogle Scholar This understanding excludes Greenpeace-style, non-violent direct actions from the scope of the offences it covers: Plant, G., ‘The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation’, 39 ICLQ (1990) pp. 27, 34.CrossRefGoogle Scholar The IMO is, however, reviewing this Convention, in the light of the increased terrorist threat since 11 September 2001.

74. This is of great practical importance, because a favourite NGO tactic is to block harbour entrances, locks or berths with vessels or swimmers in order to prevent the ingress or egress of target ships: see e.g., the judgements of the District Court of Middelburg in: (i) Saga Forest Carriers International v. Greenpeace, 26 February 2001, KG (2001) No. 165, LJN No. AB0255 (injunction granted against further direct protest action after boarding and climbing anchor chains of a Norwegian-owned ship, and threats to place swimmers around her, prevented her mooring and unloading Canadian old growth forest timber at the Vlissingen roadstead. Court President considered actions in principle unlawful and permitting their continuation not justified by general interest in having the logging of old growth forests publicised, as this outweighed by effects upon rights and interests of others and in any event already realised); and (ii) Havenbedrijf Vlissingen v. Greenpeace, 16 April 2002, LJN No. AE1549 (injunction granted, using similar reasoning, against further direct action against ship loaded with illegally logged Brazilian hardwood after she was blocked by ships and inflatables from entering Vlissingen harbour, had her tow cable cut and was boarded to prevent her from mooring).

75. Art. 219 LOSC; Art. 5(2) International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, as modified by the Protocol of 1978 relating thereto, London, 1 June 1978 (‘MARPOL 73/78’), 1340 UNTS 61 (125 Parties, representing 97% of world tonnage, as at 31 May 2003).

76. Even if the protest operation in question does not prevent her passage being ‘continuous’ or ‘expeditious’, as required by Art. 18(2) LOSC, it is likely to be regarded by the coastal state as prejudicial to its peace, good order or security, for example as an activity ‘not having a direct bearing on passage’: cf., Art. 19(2)(1). Where, moreover, the presence of protest vessels touches upon state security, as, e.g., during a peace protest against nuclear or missile tests or nuclear-capable warships operating in home territorial waters, it might be argued to be an ‘act of propaganda aimed at affecting the defence or security of the coastal state’, within the meaning of Art. 19(2)(d) LOSC: Quéneudec, J.P., ‘La Réglementation du Passage des Navires Etrangers dans les Eaux Territoriales Françaises’, 31 AFDI (1985) pp. 783, 788–89)CrossRefGoogle Scholar, and Rothwell, D., ‘The Mururoa Exclusion Zone’, 83 Maritime Studies (Australian Centre for Maritime Studies, Canberra) (1995) p. 12Google Scholar. There is no prima facie reason to restrict ‘propaganda’ to state propaganda. Deliberate harassment of other vessels appears to be regarded as non-innocent activity by some states, at least if this threatens safety or the environment: concerning UK practice, see the statement of John Bowis, Parliamentary Under-Secretary of State for Transport, in HC Deb., Standing Committee A, cols. 65–66, 4 March 1997, and infra n. 77 (iv); see also St. Lucia's expulsion from territorial waters, in 2001, of a Sea Shepherd ship for allegedly harassing tuna fishermen whom it suspected of unlawfully killing small cetaceans while fishing.

77. Examples include the following: (i) a Japanese Self-Defence Force (‘SDF’) ship shadowing a Greenpeace protest ship informed her that she was not in innocent passage when she entered Japanese territorial waters en route to conduct a protest operation near the first port of call for the 1999 shipments of MoX fuel to Japan from Western Europe. When she subsequently deployed protest boats, the SDF hotly pursued her into international waters; (ii) Indonesia threatened to use force, in 1994, to remove from its territorial waters a ship chartered by a multinational group of peace activists to sail to East Timor to draw attention to the disturbances in that country and engage in non-violent protests in support of its right to self-determination. It appears to have considered their purpose to render its passage non-innocent (but see n. 78 infra). The protest ship's flag state, Portugal, protested that the threat denied it the right of innocent passage: Rothwell, D., ‘Coastal State Sovereignty and Innocent Passage: the Voyage of the Lusitania Expresso’ 16 Marine Policy (1992) p. 427CrossRefGoogle Scholar; (iii) the coastal state might be particularly justified in regarding a NGO ship's passage as non-innocent where the NGO has previously been involved in violent protests in its waters. A Norwegian coastguard vessel asked a Sea Shepherd ship to leave Norwegian territorial waters, in July 1994, tried to place it under arrest when its captain demurred and later charged the captain, Paul Watson, with entering Norwegian waters unlawfully. Sea Shepherd claims that the protest ship was en route to a Norwegian port with the sole purpose of debating the whaling issue with the pro-whaling High North Alliance. Norwegian suspicions appear to have been reasonably aroused, however, in view of crew members’ recent convictions in Norway and the pending proceedings referred to in n. 22 supra; and (iv) in July 1999, a Dutch-registered Greenpeace ship was ordered by the UK Coastguard Agency to leave UK territorial waters and stay out of those waters along a target ship's route towards France. This followed her breach of a High Court injunction in favour of British Nuclear Fuels Ltd. (BNFL), when she blocked the harbour exit at Barrow-in-Furness, Cumbria, delaying the departure for Cherbourg of a British-registered ship to load a shipment of MoX fuel destined for Japan. The Agency exercised the power under S. 100C Merchant Shipping Act 1995 as amended to exclude from territorial waters for safety reasons foreign ships not in innocent or transit passage. The initial exclusion from territorial waters of the protest ship clearly arose from her not being in innocent passage at the time of the protest in port. The maintenance of her exclusion over two days to enable the target ship to pass through UK territorial waters unmolested suggests that the UK takes the view that the protesters’ apparent purpose to conduct further protest operations during that passage rendered their ship's passage non-innocent, at least where they represented a safety threat.

78. This assumes, however, that the suspension does not extend to the entire territorial sea, is not discriminatory and is indeed temporary: Art. 16(3) Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958 (‘CTS’), 516 UNTS 205, ND 1, p. 1 (51 Parties); Art. 25(3) LOSC. France's suspensions of innocent passage around Mururoa and Fangataufa Atolls during its nuclear tests series (infra Appendix 3) may be challenged on the grounds that they extended throughout the whole of the atolls’ territorial seas and lasted for long periods (in 1995, for nearly a year: Order of the High Commissioner of French Polynesia No. 707, 23 June 1995, Journal Officiel de la Polynésie française, edn. July 1995). The Lusitania Expresso incident discussed in n. 77 supra was complicated by Indonesia's purported suspension of innocent passage on security grounds for that ship only, notwithstanding the non-discrimination requirement: Indonesian Government Press Release, 25 February 1992, of which Rothwell gives a description in loc. cit. n. 76, at p. 427, n. 2, and questions the validity in loc. cit. n. 74.

79. E.g., in connection with the 1994 Sea Shepherd/Norway incident referred to in n. 77 supra, Paul Watson was charged with: (i) navigating in such a way that his ship caused danger or damage (to the Coast Guard ship attempting to arrest her: see further infra n. 83) or was exposed to danger or damage; and (ii) with transmitting false emergency alarm signals in Norwegian territorial waters. Mr. Watson transmitted a radio distress signal after the captain of the Coast Guard ship informed him that he was authorised to use ‘whatever means’ to arrest the Sea Shepherd ship: Watson, P., ‘Official Report of the Andenes Collision’, Sea Shepherd Conservation Society, 1994Google Scholar: available on-line at <http://www.seashepherd.com/aboutus/fleet/w4report.html> (site visited 16 July 2002). Watson later triggered an EPIRB satellite distress signal too, apparently in an attempt to prove that his ship was, contrary to the Norwegian Coast Guard's view, outside Norwegian waters: ibid. His actions were misguided, because the misuse of distress signals is prohibited by Reg. V/35 (then V/9) International Convention for the Safety of Life at Sea, London, 1 November 1974 (‘SOLAS 1974’), 1184 UNTS 2 (146 Parties – including Norway – representing 98.49% of world tonnage, as at 31 May 2003).

80. To avoid denying or hampering innocent passage, such measures must be reasonable in scope and duration, and non-discriminatory as between flags, and arguably NGOs. As, however, to French practice discriminatory against Greenpeace, see Plant, loc. cit. n. 1, at p. 133, and the Orders of the High Commissioner of French Polynesia, dated 6 February and 13 October 1985, specifically excluding Greenpeace protesters from waters around the Mururoa nuclear test site (Journal Officiel de la Polynésie française, No. special, 14 October 1985).

81. Norway has, for example, established and enforced 500m moving safety zones around whalers operating in its EEZ: see further infra p. 109.

82. This is especially the case in connection with protests against such sensitive activities as whaling and nuclear tests: see Plant, loc. cit. n. 1, at 147–155, concerning at-sea enforcement measures taken by: (i) France; (ii) Iceland (see also Brown, M. and May, J., The Greenpeace Story (London, Dorling Kindersley 1989) at p. 61Google Scholar); (iii) Portugal (see also Scarce, R., Eco-Warriors: Under-standing the Radical Environmental Movement (Chicago, Noble Press 1990) at pp. 98–99)Google Scholar; and (iv) Spain. Other states that have carried out or attempted to carry out arrests at sea, often involving hot pursuit, of foreign anti-whaling protest ships include: Norway (twice in each year 1986, 1994 and 1999) and the USA (on behalf of the Makah Indians, in 1998). As to Turkish practice, see infra text at n. 84.

83. These are particularly high where the protesters seek to evade arrest. In 1994, a Norwegian Coastguard ship attempting to arrest a Sea Shepherd vessel (supra n. 77) tried to disable her during several close passes by trailing a hawser in an attempt to foul her propellers. The fourth pass ended in collision, for which Norway blamed Sea Shepherd, but which Sea Shepherd alleges was a deliberate ramming: Watson, loc. cit. n. 74. In 1999, a serious collision occurred between a small high-speed Norwegian Coastguard vessel and one of two Greenpeace semi-inflatables trying to evade arrest: Report of the Norwegian Coastguard boat, “Springer”, in connection with Greenpeace Operations on June 12th 1999, English translation available on-line at <http://www.highnorth.no/Library/Movements/Greenpeace/gp-sp.htm> (site visited 12 February 2003).

84. The Lloyd's List editorial of 6 July 2002 called the protest action ‘lunatic’.

85. In Nederlandse Aardolie Maatschappij v. Greenpeace, 10 January 2001, LJN No. AA9468, the Court of Appeal at Leeuwarden held that execution of an earlier injunction against Greenpeace protesters’ further occupation of a petroleum company's single pile territorial sea exploration platform would not conflict with the human rights of the protesters in breach. Granted by a summary judgement of the President of the District Court of Amsterdam of 29 August 1997, breach of the injunction was punishable with a penalty of Df1. 50,000 for every day of renewed protest action. The court reasoned that the injunction left the rest of the North Sea available to the protesters to conduct their protests against petroleum exploration.

86. See e.g., infra n. 139 and 151, and The Independent, 25 June 1996, p. 6. Sea Shepherd alleges, and Norway denies, that the Norwegian Coastguard ship involved in the collision referred to in n. 83 supra attempted to prevent the protest ship's escape by use of live fire and exploding depth charges.

87. See e.g., infra p. 107 and n. 151. A significant diplomatic reaction from a target state followed a Greenpeace protest against the carriage of nuclear weapons onboard US surface warships. The USA made a formal protest to Sweden, inviting it to investigate the actions of the Swedish-registered vessel, Mondic (which it accused of ‘numerous dangerous manoeuvers by … which the [protestors] have created clear and intentional hazards to the navigation of US warships and jeopardized safety at sea’), and to take necessary action in accordance with Art. 94(6) LOSC: Note Verbale dated 2 December 1989. Greenpeace admits to having on occasions used protest ships to play ‘chicken!’ with or block the passage of target ships and to block the rear ramps of whalers or fishing vessels: see e.g., Plant, loc. cit. n. 1, at pp. 154–155, and Szabo, , Making Waves: the Greenpeace New Zealand Story (Auckland, Reed 1991) at p. 189.Google Scholar

88. See e.g., Plant, loc. cit. n. 1, at pp. 152–153, and supra n. 79.

89. E.g., in August 1997 Greenpeace disputed the validity of the hot pursuit and arrest by the US Coastguard on the high seas of one of its Dutch-registered ships following a direct action protest, apparently conducted in breach of a temporary restraining order granted by a US court, against the towing of an Arco drilling island to an environmentally-sensitive location in northern Alaskan territorial waters.

90. In Vulcanus II for example, the Court of Appeal at The Hague rejected Greenpeace's ‘public interest’ argument (see n. 16 supra) on the ground that ‘the commercial interest of the Respondents in the appeal is not the only interest to which this runs counter, as the Appellants suppose: another is the public interest in ensuring that in a democratically governed country any person may exercise rights which he has acquired lawfully’. The Respondents, the Court pointed out, were acting in pursuance of a permit which was partly based upon an international agreement (the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. London, Mexico City, Moscow, Washington DC, 29 December 1972, TIAS 8165, 11 ILM (1972) 1294 – 80 Parties as at 31 May 2003) to which the Dutch courts were bound to give effect.

91. Notably the ports of an intended target state or an embarrassed flag state (see Hunter, loc. cit. n. 15, at p. 313, also p. 269; Szabo, loc. cit. n. 87, at p. 26). In some circumstances, however, such as where the targeted operations take place in an isolated ocean area or where the target state seeks to obscure their location or timing or delays them so as to thwart the protest, a protest ship might be obliged to enter such ports for resupply and rest, or to await developments: see Plant, loc. cit. n. 1, at p. 146, n. 56. Difficulties might even be encountered by NGO ships with the port state's authority to operate in its waters (cf., supra n. 26). On 31 August 2001, Paul Watson alleged that ‘The [Ecuadorian] Navy and port authorities denied [the crew of a Sea Shepherd ship resupplying its Galapagos Islands Marine Reserve patrol vessel] permission to enter the country, then required us to declare an emergency in order to enter, then accused us of having no emergency, then variously imposed, relaxed, and tightened arbitrary restrictions on the movements of my crew and visitors to the ship, and denied our valid visas.’

92. In view of its isolation, Iceland was able to rely on in-port enforcement, in 1979, to impose an interim injunction on crew members of a Greenpeace ship when it called at Reykjavik after disrupting whaling in its EEZ: author's earlier article, loc. cit. n. 1, at p. 154.

93. See ibid., at pp. 147–151.

94. In, unsuccessfully, defending the civil proceedings referred to in n. 15 supra, Greenpeace's lawyer argued that the relevant Greenpeace press releases were inaccurate in part and unfortunately worded. These had claimed that the protesters had obstructed the hunt, tried to remove the whaler's harpoon and cut free a harpooned whale to let it die in peace. The lawyer argued that in fact Greenpeace's actions had been limited to a symbolic protest, except for the cutting free of the whale, and that this had been only slightly wounded and had good chances of survival (so that it should not be regarded as effectively captured by, and so already the property of, the Plaintiff whaler): High North News, No. 10, 15 May 1995, reproduced at <http://www.highnorth.no/Library/Movements/Greenpeace/gr-pr-re.htm> (site visited 12 February 2003).

95. In the same case, loc. cit. n. 15, Greenpeace further argued, unsuccessfully, that the cutting free of the whale was such an unauthorised individual act.

96. Greenpeace started life, in 1971, as an unincorporated and hand-to-mouth organisation based in Vancouver. Over the following six years, further branches sprang up, first in Canada and then in the USA and Western Europe, after which it began to be organised on a more permanent and global basis. Since 1980 it has consisted of Greenpeace International, now incorporated in the Netherlands as Stichting Greenpeace International and based in Amsterdam, and a growing number of Greenpeace national and regional offices around the world, any of which may conduct a Greenpeace campaign. It now has a European Unit in Brussels, about 30 national/regional offices and a presence in over 40 countries. The national/regional offices are given a license to use the Greenpeace name, for which they pay a substantial royalty to Greenpeace International. Each office is governed by a board, which appoints a trustee representative. The latter meet annually to agree on the NGO's long-term strategy, make necessary changes to its structure, agree a ceiling on Greenpeace International's spending and elect the International Board of Directors. Incorporated in the Netherlands, as Stichting Greenpeace Council, this Board approves Greenpeace International's budget and audited accounts and appoints and supervises the International Executive Director, who leads the organisation with the aid of senior managers. Greenpeace International co-ordinates international campaigns and helps and monitors the development and performance of national and regional offices. In effect, it has a veto over new national campaigns: cf., Spencer, L. et al. , ‘The not so peaceful world of Greenpeace’, Forbes Magazine (11 November 1991).Google Scholar

97. At present, the four permanent Greenpeace International ships are owned by Stichting Oxygen, Stichting Rubicon or Stichting Sirius and their operation administered by Stichting Marine Services, all of them companies incorporated in the Netherlands. An English company, Greenpeace (Rainbow Warrior Holdings) Ltd. (RWH Ltd.) has exclusive rights to operate certain of these vessels under a 25 year bareboat charter, due to expire on 4 August 2014. In Vulcanus II, supra n. 16, however, the Court of Appeal at The Hague considered Stichting Sirius to be an appropriate party to summons, as the owner of a Greenpeace ship which had been used in a relevant earlier protest and might be expected to be so used again. This was notwithstanding that the Stichting had chartered her to RWH Ltd., which had in turn made her available to third parties. In the past, the registration and holding pattern of the permanent ships was more varied and obscure. Ships of the same, and other, nationalities are also used for regional, national and ad hoc campaigns.

98. For this reason, in January 1994 the Nord Troms Herredsrett convicted individual Greenpeace protesters of offences arising from a direct action that halted a drill ship's operations on the Norwegian North Sea continental shelf, but acquitted Stichting Greenpeace Council: High North News, No. 10, 15 May 1995, reproduced at <http://www.highnorth.no/Library/Movements/Greenpeace/gr-to-pa.htm> (site visited 16 July 2002).

99. In Vulcanus II, supra n. 16, however, the Court of Appeal at The Hague showed that it would not lightly permit Greenpeace protesters to hide behind the complexities of the organisation's internal constitutional arrangements. It noted that the branches in various countries customarily conducted protests under the common banner ‘Greenpeace’, that the branches had close links (e.g., through the Council) and that they often used the same protest ships. It held Greenpeace Netherlands to be an appropriate party to summons on the basis of the support it had given Greenpeace Belgium during the latter's maritime direct action protests against two waste incineration ships between August and October 1987 (see e.g., n. 10 supra), and of its [the Dutch branch's] threat to continue such protest actions after one of the ships, the Vulcanus II, moved her home port from Antwerp to Rotterdam.

100. Usually high-speed inflatable or semi- inflatable/semi-rigid craft, powered by outboard engines and capable of speeds of 30 knots or more. Boats powered by water jets and ‘jet skis’ are a more recent variant.

101. Greenpeace has deployed these on numerous occasions, e.g., against whaling by Japan (1980, 1999 and 2000), incineration at sea (1983), US nuclear-armed warships (1987), industrial fishing of the ‘Wee Bankie’, off Scotland (1996), beam-trawling in the North Sea (1997) and shipment of MoX fuel between Japan and Western Europe (2002). At sea, they jump from protest vessels or helicopters into the path of the target ship in hope of forcing her to stop or change course. On occasions they hold objects, such as banners, buoys or buoyed ropes, which increase their obstructive capacity and threaten perhaps to snag the target ship's propeller. Analogous are antisealing protesters on ice floes who interpose their bodies between a seal and its hunter's club. When frogmen or swimmers are used in territorial or archipelagic waters, they appear to fall within the coastal state's plenary jurisdiction, as they enjoy no right equivalent to foreign ships’ rights of innocent, transit or ASL passage. Difficult legal questions are posed, however, by their use further seaward. There appears to be no a priori reason why they should not be regarded as exercising a ‘freedom to swim’, as well as a freedom to conduct peaceful public protest, but it is not clear whether their states of nationality alone are entitled to exercise jurisdiction over them or the flag state of the mother protest ship too. Do they, when they enter the water, move outside the jurisdiction of the flag state, like derelict vessels (cf., The Costa Rica Packet, Moore, V International Arbitrations, 4948)? Common sense suggests that they do, except perhaps where they remain linked to her by an airhose or line, but this is by no means certain.

102. In protests against land-based nuclear tests and tests involving the launching of missiles from land over the sea, ‘human shield’ tactics involve protest vessels or helicopters simply endeavouring to remain in the directly affected area. Where the adoption of human shield tactics is physically impossible, for example, because a target ship is discharging ‘offending’ objects or substances below the waterline or to the atmosphere or has put out cages or other obstacles to keep protest boats clear, protesters are obliged to resort to more intrusive tactics, such as occupying the target ship.

103. Apart from considering whether to alter her course and speed, a target ship might judge that she cannot fire harpoons, offshore seismic test shots or weapons, nor raise or lower heavy fishing gear, nor dump heavy objects, nor discharge hazardous or noxious substances, without risking harm to the protesters.

104. Protesters’ time and resources are limited, so mat they must select their protest campaigns and target operations carefully. They must also place emphasis on achieving presence at the protest site at the material time. This generally means the time when delay to the targeted operation is most expensive or irksome to target ship or state interests.

105. As e.g., where protest boats prevent certain offshore seismic tests for hydrocarbons: cf., Greenpeace Press Release, 25 August 1998. This is not to say that protest boat obstruction of a slow-moving or stationary ship is always safe for that ship: see text at n. 84 supra.

106. It follows in some jurisdictions that a target ship or state cannot recover economic loss occasioned by a human shield action, as this does not result from personal injury or damage to its property. As to English law, for example, see Clerk, J.F. and Lindsell, W.H.B., Clerk and Lindsell on Torts, 17th edn. (London, Maxwell 1995) paras. 7–56 et seq.Google Scholar

107. See e.g., the Norwegian Coastguard Report, supra n. 83.

108. By so influencing the target ship's navigation, the protesters might also affect her ability to conduct a targeted operation safely or at all: see author's earlier article, loc. cit. n. 1, at pp. 157–158. Their obstructive effect is likely to increase where target ships are operating together in close-proximity, as in the cases of whaling factory fleets, but so are the dangers to the protesters: in 1977, several protest boats became lost in poor visibility in the middle of a whaling fleet: Hunter, loc. cit. n. 15, at pp. 351–355; and, in 1989, a Japanese whaler collided in mid-Ocean with the Greenpeace ship from which protest boats had been launched in a direct action against her: Brown and May, loc. cit. n. 82, at fn. 52.

109. E.g., a Greenpeace swimmer climbed onto the bulbous bow of a ship exporting tropical timber from Australia, in the 1980s, and see text at n. 84 supra.

110. E.g., in 1997, Greenpeace protesters repeatedly climbed onto the deployed beams of British and Dutch beam-trawlers in the North Sea, and others ‘occupied’ the towing chain of an Arco drilling platform to prevent its being towed to a new site, off northern Alaska.

111. A Greenpeace protester disrupted a Japanese whale factory ship's recovery of a whale by this means, in the Southern Ocean in 1999.

112. E.g., Greenpeace protesters tied: barrels to ‘industrial fishing boats’ nets above the ‘Wee Bankie’ off Scotland (1996); boats to the stern of a German herring-roe fishing vessel in the North Sea, to prevent her hauling in her nets (1996); long planks to the upper part of Italian drift-nets, that allegedly exceeded the EC permitted length, wrapping the nets around them (1998); and a manned inflatable to the line transferring a harpooned whale to a Japanese factory ship in the Southern Ocean (2000).

113. E.g., by pumping a ‘wall of water’ upwards from pumps at the rear of protest boats operating in front of a whale-hunting ship, so as to shield whales from the harpooners’ view, as Greenpeace did in front of Japanese whalers in the Southern Ocean, in January 2000.

114. E.g., in 1996, Greenpeace protesters deployed oil booms against British and Danish boats engaged in ‘industrial fishing’ of the ‘Wee Bankie’ off Scotland.

115. As e.g., in relation to the normal exercise of the right of visit and, under domestic civil law rules, on the passing of risk or property under contracts for the carriage of goods by sea and on physical service of writs or arrests in rem: cf., Marsden, R.G. et al. , Marsden's Collisions at Sea, 12th edn. (London, Sweet and Maxwell 1998) §§ 18–37 and 18–56.Google Scholar

116. The protest by the Danish fishing boats referred to in n. 10 supra resulted in the target ship having to be towed back to port, when her propeller became caught in a net.

117. This was arguably the case when, in 1989, Greenpeace protest ships twice came close to stationary or slow-moving US submarines testing the new Trident II ballistic missile at sea, so as to place themselves in the line of danger of impact damage in the event of a missile- or directional guidance-malfunction: see infra p. 107. The USA argues, however, that there is risk of collision in such zones: see infra n. 140.

118. In the absence of harm, an international claim for breach of the Colregs cannot be successfully brought. The appropriate flag state authorities might choose to prosecute persons responsible for technical breaches, but the absence of collision damage makes this less likely. Tort claims would also normally be pointless. In any event, the target ship has an obligation to try to avoid collision by her own action as far as she is able: cf., Rule 17(a)(ii) and (b) 1972 Colregs and The Uhla (1867) L.R. 2 A. & E. 29n.

119. Cf., the normal restriction of continental shelf/EEZ safety zones around artificial islands, installations and structures to a breadth of 500m measured from the outermost edges of the structure in question: Arts. 60 and 80 LOSC.

120. State practice concerning restraining orders should be regarded as equally significant to that concerning state prescription of safety zones, as private actors directly exercise freedoms and rights at sea and do not always need to resort to state intervention to uphold those rights.

121. Of interest is that Cyprus and Malta consider that peaceful protest carries with it a moral obligation not only to prevent harm to third parties that come into contact with the demonstration but also to the protesters themselves: IMO doc. MSC 75/17/45, supra n. 2, para. 1. Similar reasoning can be detected in some national and international case-law, e.g., in Steel v. UK, supra n. 39.

122. The equivalent proposition with respect to human shield protests against land-launched nuclear or missile tests affecting areas of high seas is that a protest vessel may sail into and stay within a high seas warning or exclusion zone declared unilaterally around it, for the sole purpose of protesting against those tests, i.e., even where she, and indeed other vessels of her flag state, would not normally engage in navigation there, and yet still be acting with due regard for the testing state's interests. Unfortunately, no guidance on this point arose from the Nuclear Tests cases (Australia v. France, New Zealand v. France), as the dispute was rendered moot by France's switch to underground tests, in 1975: [1974] ICJ Rep. pp. 253 and 457.

123. Target or intervening ships might be manoeuvred so as to keep the protest ship under an obligation to give way in accordance with Colregs Rule 16. Small boats might also be manoeuvred so as to block the water jets of protesters’ jet-powered boats or jet skis and cause them to stop. Depending on the circumstances of the case, physical measures might include the target or intervening government ship using: poles or high-pressure water hoses to push protest boats clear; long-handled knives to cut lines attaching protest boats or objects to the target ship or her equipment or to puncture protest inflatables; and water hoses to douse and so put out of action protest boats’ outboard engines.

124. See author's earlier article, loc. cit. n.1, at p. 149.

125. Ibid., at pp. 149–50, and see n. 151 infra.

126. As to the New Zealand offer, in 1973, to help the Fri, see ibid., at p. 149, and Szabo, loc. cit. n. 87, at pp. 30–33.

127. Plant, loc. cit. n. 1, at pp. 158–159.

128. Energieonderzoek Centrum Nederland v. Stichting Greenpeace Nederland et al., KG (1982) No. 154.

129. See Comment, 14 NYIL (1983) p. 424, n. 155.

130. UK Atomic Energy Authority v. Greenpeace, KG (1982) No. 161. The UKAEA also obtained an injunction in the English High Court.

131. Studiecentrum voor Kernenergie et al. v. Greenpeace, KG (1982) No. 162. It also remedied an omission in the order of 9 September, by prohibiting contravention of the ‘relevant marine navigation regulations’, i.e., the 1972 Colregs, as well as the principle of good seamanship.

132. Stichting Greenpeace Nederland, Stichting Greenpeace International and Stichting Greenpeace Council.

133. The decision of the Dutch courts in Vulcanus II (supra n. 16), which went further and prohibited protesters from coming within 100m of the target ship in question, is distinguishable as a domestic decision. The Greenpeace organs being restrained, Greenpeace Netherlands and Stichting Sirius, the owner of the ship used in the protests leading to the injunction (as to which see supra n. 99) were both of Dutch nationality.

134. Decision of 5 March 1997.

135. BNFL v. Greenpeace, 21 February 1995. BNFL also obtained a similar injunction in the English courts.

136. BNFL and COGEMA v. Greenpeace, 14 and 16 July 1999.

137. Greenpeace's opportunities to obstruct or occupy the ships in question have been restricted to British and French territorial waters before they have set off on their laden voyages, and to Japanese territorial waters at the end, or vice versa. Once the ships have reached the open sea, they will normally engage in continuous voyages to or from Japan at speed and stay as far as possible beyond zones of national jurisdiction. In practical and safety terms, therefore, especially in view of the highly radioactive nature of their cargoes, Greenpeace is normally restricted to symbolic protests. Exceptions have occurred only when ships have been routed via ‘bottlenecks’, like the Panama Canal (ship occupied in 1995) or the Tasman Sea (2002 protest, supra n. 101).

138. Hunt, C., ‘Greenpeace and the US Navy: Confrontation on the High Seas’, US Naval War College paper, 14 May 1990, at p. 2Google Scholar (on file with author). The delay cost the Navy US$2 ml.: Sworn statement of Rr. Adm. K. Malley, Director, Strategic Systems Programs, US Navy, dated 12 December 1989 (on file with author).

139. Draft statement of claim prepared in April 1990 (on file with author – Greenpeace alleging that: enforcement measures taken even before launch safety zone became formally operative; protest ship repeatedly rammed even after it signalled that it was thereby disabled and required to evacuate wounded by helicopter; and no US naval vessel present responded to its ‘mayday’ call when it temporarily lost use of its engines. According to the US Navy, on the other hand, two naval vessels began to ‘shoulder’ the protest ship away from launch safety zone only after it ignored requests to keep clear. As protest ship manoeuvred in response more and more forcibly towards submarine, warships’ ability to shoulder it with finesse decreased, and it incurred collision damage. In addition, high pressure water hoses used against it and its crew in attempt to deter it from entering the zone, and naval helicopters flown low to create artificial winds to slow down inflatable protest boats, enabling commandos to intercept and return them to protest ship. Commandos also cut fuel line of one boat to render the boat inoperable: Sworn statement of Adm. C. Larson, Chief of Naval Operations (Plans, Policy and Operations), US Navy, dated 12 December 1989 (on file with author); see also New York Times, 5 December 1989, p. A1, and Globe and Mail, 5 December 1989, p. A9).

140. According to the USA, entry into the launch safety zone by other ships would lead to risks of collision and of missile- or directional guidance-malfunctions, risking all ships in the area and their crews.

141. As also was the warning zone around it, which also lasted seven hours, and was 30 NM by 200 NM in size. This may be presumed to be the area that might possibly be affected by falling debris after an unsuccessful firing.

142. See e.g., Larson, loc. cit. n. 139; sworn statement of Vice Adm. R. Bacon, Commander Submarine Force, US Atlantic Fleet, dated 8 December 1989 (on file with author); and Sworn statement of L. Ullian, Deputy Director of Safety, Eastern Space and Missile Center, Patrick Air Force Base, Florida, dated 11 December 1989 (on file with author); also Hunt, loc. cit. n. 138, esp. at pp. 15–21. They might have added that the exercise being conducted by the group of warships was a ‘special circumstance’ requiring Greenpeace to show special caution in accordance with the principle of good seamanship: a merchant ship encountering a squadron or formation of warships should pay attention not only to the Colregs but also to any relevant cautions or recommendations given in Notices to Mariners (H.M.S. Truculent [1951] 2 Lloyd's Rep. 308, 315) and should normally keep clear: The F.J. Wolfe 79 Ll.L Rep. (1945–1946) 111, 118, per Scott L.J.

143. Letter dated 2 December 1989 (on file with author). It appears to have assumed that the declared zone was of reasonable size and duration and to deny the existence of a freedom to conduct protests, including symbolic protests, even as an adjunct to the freedom of navigation, at least in such zones.

144. Of 3 NM radius and 5 hours' duration.

145. Notices to Mariners were issued for three different warning zones in the North Atlantic, and several delays were arranged: The Independent, 27 May 1994.

146. Twice the test firing had to be abandoned, but the third attempt succeeded: ibid.

147. Press Release, 20 October 1999.

148. Statsadvokat v. Abrahamsson, et al., Stavanger Byrett, 20 October 1999.

149. Prior to 1978, this prevented landing anywhere within half a mile of or overflight at less than 2000 feet above the herds without authority: S. 12(5)(b) Seal Protection Act as amended. In 1978, the prohibition was extended to ‘the area of the hunt’. The zone outside of which observers must keep was later reduced to 25 metres, but now appears to have reverted to half a mile, unless otherwise authorised.

150. E.g., against Greenpeace protesters in 1976, 1977 and 1978: Hunter, loc. cit. n. 15, at pp. 293, 380 and 438.

151. In 1972 and 1973, a Greenpeace yacht owned by a Canadian and with New Zealand crew members on board, succeeded in sailing from New Zealand to the high seas areas likely to be affected by radioactive fall-out from any French atmospheric test at Mururoa Atoll. The protesters thus became ‘human shields’ in protest against further tests. In 1972, France declared a warning zone around the test site. Since the yacht could not be lawfully exclude from this, it had only to contend with natural forces and French naval efforts to impel it, by means of manoeuvres manipulative of the international Colregs, away from the critical area and, if possible, into the atoll's territorial waters (where France claimed jurisdiction to arrest it and detain its crew). Greenpeace alleges that the yacht was, in fact, buzzed by aircraft and harassed by warships. In any event, a close-quarter encounter ended in collision. New Zealand protested; the yacht owner obtained damages equivalent to about US$ 5,000 in the Tribunale de Grande Instance, Paris: order dated 13 May 1975; affd. Cour d'Appel, 13 June 1976; and the Canadian government, although at first denying that the yacht was Canadian (statements of the Minister of External Affairs, Can. H.C. Deb. 19, 20, 23 and 24 June 1972), subsequently espoused the owner's appeal against the level of the award: CYIL (1976) p. 329. In 1973, the same yacht, while on the high seas, entered a ‘zone dangereuse’ declared by France around Mururoa. It did so the day before a scheduled test, and French commandos boarded and arrested it and its crew. Greenpeace alleges that the arrests were both unlawful (being conducted on the high seas) and accompanied by excessive force: McTaggart, D. and Hunter, R., Greenpeace III: Journey into the Bomb (London, Collins 1978) at pp. 278, 285–301 and 305Google Scholar. In subsequent legal proceedings in France, however, the Tribunale de Grande Instance, Paris, afforded the French government a defence of ‘exceptional circumstances’. Both the Canadian and the New Zealand governments issued protests against the French action, and in 1976 the former, which had come to accept that the yacht was Canadian (Can. H.C. Deb., 5 February 1973) espoused the owner's appeal against the court's decision.

152. Supra p. 108.

153. Supra n. 3.

154. Supra n. 74.

155. A number of states will apply the amendments early and some, indeed, will apply higher standards, one hopes in all cases consistently with international law: cf., the US Maritime Transportation Security Act 2002 (S. 1214) and 33 C.F.R. 160.T208 (2002), ably summarised by John, Kimball in Kimball, J. and Wall, F., ‘Shipping and the Fight against Terrorism’, 9 JIML (2003) pp. 65, 68–69.Google Scholar

156. Adopted by Resolution 2 (12 December 2002) of the SOLAS Maritime Security Conference of 9–13 December 2002: IMO doc. Sales No. 1116E.

157. Under new SOLAS Reg. XI-2/9, or under customary international law, by virtue of the port state's inherent sovereignty: cf., Molenaar, E., Coastal State Jurisdiction over Vessel-Source Pollution (The Hague, Kluwer 1998) at pp. 110–131Google Scholar, and BMT and Plant, ‘Final Report of the Study on the Economic, Legal, Environmental and Practical Implications of a European Union System to Reduce Ship Emissions of SO2 and NOx’, No. 3623, April 2000, App. 4, paras. 153–175, available on the CEC web-site at <http://www.europa.eu.int/comm/environment/enveco/studies2.htm#27> (site visited 19 May 2003).

158. See also, concerning the so-called Limburg clause, Wall in Kimball and Wall, loc. cit. n. 155, at p. 79.

159. Kimball suggests (ibid., at n. 70) that ‘crew detainment [on board a foreign ship in port] is an immigration issue. It is not a human rights issue’. Aliter, perhaps, detainment of a protester still on board her (see supra pp. 89–90) and stateless or other crew members unable to disembark at any port.

160. Cf., ‘New U.S. Rules “An Incentive to Murder Stowaways”’, a Lloyd's List page 3 headline for 14 October 2002, albeit that this is described by Kimball as a ‘tabloid headline’: ibid.

161. Supra n. 71.

162. IMO doc. LEG 85/4, 17 August 2002, Annex 1 (reproduced at <http://afls16.jag.af.mil/dscgi/ds/py/view/collection-4966> - site visited 19 May 2003), draft Art. 8 bis.

163. Washington DC, 2 December 1946. 161 UNTS 74.

164. Hunter, loc. cit. n. 15, at pp. 385–392.

165. See Plant, loc. cit. n. 1, at pp. 161–162.

166. See pp. 93–94 supra.

167. See ibid.

168. Loc. cit. n. 1, at p. 113.

169. See e.g., Szabo, loc. cit. n. 87, at pp. 86–89.