Posted
February 21, 2007

Enforcing the Moratorium Commons: Of Terrorists, Pirates, State-sponsored Industrial Criminals, and Whales

A face-off between activist "pirates" and Japanese whaling ships highlights the meaning and complexity of the commons.

Earlier this month the Greenpeace ship Esperanza followed a Japanese industrial whaling fleet down to the Antarctic Whale Sanctuary to protest Japan’s plan to kill up to 935 Antarctic minke whales and 10 endangered fin whales. Whales have been protected for the past two decades by the International Convention on Whaling (IWC), international law’s first and only global commons regime, but none of the signatories of the IWC – not the United States, the European Union, or Australia – were traveling down to the Southern Ocean to stop Japan’s unlawful behavior.

Two other protest ships from the Sea Shepherd Conservation Society have also entered the area, the Farley Mowat and the Robert Hunter. They made the trip despite having their flags recently and suddenly removed. (Their flag countries honored a request by Japan to deregister them. Japan, second only to the US in development aid, has a strong international arm.) “We haven’t broken any law or regulation, but now we’re not registered anywhere – we’re technically a pirate ship without a flag,” said Farley Mowat’s captain, Paul Watson. (Watson is an original founder of Greenpeace who left to start the Sea Shepherd in order to enforce – as opposed to bear witness to the violation of – international law, regulations and treaties concerning environmental protection.)

But if the Farley Mowat has no flag, international law allows any nation, including the Japanese, to attack and confiscate it at will. And as if this were not enough, a few days ago the engine of the fleet’s whaling factory ship, the Nisshin Maru, accidentally caught fire. One crew member died and the ship is now stranded, threatening the pristine Antarctic environment with its vulnerable oil and fuel load. Greenpeace has offered to tow the Nisshin Maru to safety but bureaucrats in Tokyo have rejected the offer, calling Greenpeace a “terrorist” organization.

Terrorists, pirates, and state-sponsored industrial criminals. Why does this area of the global commons appear abandoned to such lawlessness? The best way to answer this question is to look at the law itself. How has international law described and regulated whales as part of the global commons?

Whales are a great example of how global commons are established in international law. The relationship between international law and whales appears to begin in 1946 when the International Whaling Commission brought whales out of the property category of res nullius (they belonged to no one and were thus freely hunted by everyone) to res communis (they belonged to everyone and could be protected by law). The 1946 agreement protected whales as a commercial resource with quotas and various other restrictions on the industrial fleets used in their capture. By 1962 whale harvesting reached its peak with the recorded total take of 62,000 great whales. By the 1970s the whale population crashed and the experiment in global commons resource management was over. In 1982 the International Whaling Convention called for a moratorium on whale killing that is still in effect.

I will return to the curious legal category of the moratorium and what it tells us about how global commons regimes currently function in international law. But first it is important to recognize that there is one provision in the moratorium for indigenous peoples whose traditional forms of life are sustained by whale hunting and another provision for scientists who study whales. Both of these provisions create leveraging power in the global commons. Japan, for example, claims that it is slaughtering one thousand protected whales this month for scientific purposes. In actuality, Japan is one of two countries that did not sign the IWC despite protest from the international community and their own citizens. Along with Norway, Japan has culinary traditions involving whale meat.

While the international community may feel blameless because the science loophole allows it to look the other way, such is not the case for the three protest ships. Before beginning their direct action of interference with the Japanese whaling fleet, the Farley Mowat called for the Nisshin Maru to cease all whaling activities in the Southern Ocean Whale Sanctuary as sanctioned in international law and treaties:

bq. Nisshin Maru, this is Captain Paul Watson of the Sea Shepherd vessel Farley Mowat. Please be advised that you are killing whales in the Antarctic Whale Sanctuary. You are targeting endangered species of whales in violation of international conservation law. You are killing whales in violation of the IWC global moratorium on commercial whaling. Please cease and desist your illegal whaling operations and leave the Antarctic Whale Sanctuary.

Watson’s group is acting in accordance with the principles of the 1982 United Nations World Charter for Nature (see UN General Assembly Resolution 37/7), which authorizes non-governmental organizations and individuals to uphold international conservation law, even in areas like the global commons which are beyond national jurisdiction. So, for the Sea Shepherd constituency, Japan’s whaling fleets are also pirate vessels operating in global commons.

What kind of global commons is this where ships can be both legitimate and illegitimate at the same time? What kind of commons have we created for the whales? And why is it that the best we can do is have a moratorium to protect these creatures? Why is the legal concept of a “moratorium” the most successful legal form to date for thinking about whales as a commons regime? A moratorium, after all, is not a legal definition of commons. According to the OED, a moratorium is “a legal authorization to a debtor to postpone payment for a certain time.” If you look at the save-the-whale websites, lawyerly friends of the whale are hoping that this moratorium will become permanent. What is being permanently delayed in this new legal category?

To pursue this line of inquiry we need to go back for a minute to the property categories of Roman law which have so influenced current thinking in international law. As I noted in my previous blog, res communis is a persistent legal doctrine used to define the global commons. It belongs to a set of categories depicting how the Romans imagined the world divided into a property system. Res is the Latin word for “spaces” or “things” and international scholars like to talk about four kinds of res that persist from Roman times to our modern legal framework: res communis (light and air); res publicae (government run navigable rivers, highways, territorial seas); res nullius (objects/spaces with no property rights attached either because they are abandoned, like stray cats, or because they are not yet acquired); res privatae (any res nullius object that is taken into possession by one or more individuals).

For ages whales were treated as res nullius objects, caught – just as Japan is doing today in the Southern Ocean – and made into res privatae. But in 1982, the International Convention on Whaling, the first global commons regime, sought to put whales into the category of res communis. Why then did we need a moratorium on top of this legislation? Why couldn’t we just protect whales as commons? Why did we need “a legal authorization to a debtor to postpone payment for a certain time”?

Are human beings the debtors in this law? Indeed we have been circulating whales within a money economy, ratcheted up one-thousand fold when we began catching and killing whales with industrialized, factory fleets. Have we accumulated some debt our laws did not recognize in this process? Is it now time to pay? How much time does the law give us to pay this debt? What kind of payment will be required of us; and to whom do we owe this payment?

I don’t think you can answer these questions with the categories of property we have today. Not res nullius, res privatae, res publicae or even res communis appear to be sufficient categories in which to put whales. If we need a moratorium to do the work of protecting these creatures, we need more than what Roman law called res communis. Today, our attempts to create commons in other globally shared domains like genetic code or the radio spectrum are similarly vulnerable to enclosure by corporations. In international law, res communis is a weak category. It is almost as if res communis lost some of its proprietary force when it was severed in the modern age from that seemingly obsolete fifth category of Roman property law that we no longer see mentioned in legal textbooks: res divini juris – things or spaces belonging to the gods. For the Romans, res divini juris was an integral part of property law. It was its own domain and if you took from the gods, the price you paid went beyond money (in res privatae) or the rights of citizenship (in res publicae).

Indeed, I would argue that when it comes to the global commons, international law is failing because it does not have a clear sector which is set apart from the market economy. We appear to have set science apart, recognizing that scientific knowledge is something different than property. But more often than not we are like the Japanese whalers in the Southern Ocean, using the cultural capital of science as a smoke screen to turn a commons into a market economy.

The fact that we need a legal category like the (perpetual) moratorium in our laws to protect whales is evidence that something is missing from our notions of commons in international law. If we think a bit about this, we can figure out why.

By the time the first global commons regime became law in 1982, advances in underwater photography had brought whales into the consciousness of a large group of citizens. In 1976 Jim Hudnall photographed for the first time live whales off the coast near Maui. On May 2, 1978, the noted CBS news reporter Walter Cronkite cited a number of special traits which appeared to place whales and their cetacean cousins – dolphins and porpoises – in “a different moral category than other animals.” Cronkite commented that there is something in humanity’s ethical development “that is done violence to when men kill, without compunction, intelligent creatures which a growing number of people consider almost human.” In this period, then, popular culture took these giant mammals out of the category of scientifically identifiable species, and placed them in a fuzzy realm that was somewhere in between fish, teddy bear, and human.

Once whales started to become like humans, they entered something like a sacred category where the values of the market economy were insufficient to name their special status. If we had simply given them a global commons in which to swim, a space that belonged to everyone to share equally, money values would still have been operative even if restricted. But somehow that would not have been enough. And so we placed them in the Antarctic Whale Sanctuary with a moratorium, a mobile sanctuary that traveled with every pod as it moved along its vast migratory path.

The fact that we are not yet stewards but only fellow travelers with these creatures tells us that, in our laws, we know we are only deferring the real payment we owe. And the law remains unclear in this area. That is why globally shared jurisdictions are full of pirates, terrorists, and corporate criminals. Our maritime global commons are more like zones of exception, where the rules of law don’t obtain. They are protected more like res nullius (a sector where due process has been vacated and anything goes) and less like res communis (with well-regulated legal institutions).

In my next blogs I will continue the story of the global commons in international law going back to the early law of the seas and forward to the gene pool. I will continue to argue that, as in the moratorium on whaling, indigenous peoples, with their special status (and leverage) in the global commons, have much to offer the project of building just and culturally diverse global commons today.