Shaky footage from a night vision camera shown on the breakfast news this morning showed three self-described environmental activists clambering aboard a Japanese government ship off the Western Australian coastline. As a former clearance diver I admired the success of the covert operation, but from an environmental law perspective it set me thinking about the role of environmental activism and environmental regulation. Under what circumstances is environmental activism of this nature justified and is there guidance as to how it should be applied?
Firstly the known and facts and assumed motives of the action are this. The three activists in question were ferried from the “Steve Irwin”, the flagship of the anti-whaling organisation “Sea Shepard”, in the early hours of Sunday morning to the Japanese ship for the (surmised) purposes of; a) delaying the Japanese ship, which had been trailing the Steve Irwin and thereby allowing the Steve Irwin to slip away and continue its anti-whaling actions unimpeded, and b) as an act of civil disobedience to protest against “scientific whaling” in the Southern Ocean that would hopefully force the Australian government to take action to prevent the whaling.
The term ‘civil disobedience’ was coined by Henry Thoreau in a series of lectures delivered in 1849. Thoreau, who with his classic novel “Walden” can be considered a founding member of the conservation movement, recognised the term as an oxymoron providing a contradiction between being an obedient subject of a civil society while at the same time demonstrating disobedience to the same State institutions.
A purely procedural view of democracy (as put forward by Raz in “The morality of freedom”, 1987) is that if a process is genuinely democratic then it has authority and it follows that compliance is required regardless of the content of the democratic decision . The opposing viewpoint is that democratic decisions should be evaluated based on the quality of the outcomes, it is fromt his viewpoint that civil disobedience arises. Thoreau made the point that legal obligations (what the law requires) and moral obligations (what moral principles require) are conceptually different. Martin Luther King famously wrote in his letter from Birmingham City Jail that “… there are two types of laws; there are just laws and there are unjust laws. I would agree with Saint Augustine that ‘An unjust law is no law at all’ “. The proposition is that all laws have some moral weight but that weight may be over-ridden by stronger moral considerations.
An obligation to obey the law benefits society by requiring a fair reciprocal sharing of burdens. If activists expect companies to obey the law then it is only fair for the activists themselves to obey the law. Tim Soutphommasane recently discussed the moral obligation to obey the law in an opinion piece published in the “Australian” in which he concludes “… when the presumption of obeying the law is removed things may go horribly awry … and it is only a short descent, in a manner of speaking, into the state of nature”. How then can we judge whether civil disobedience is justifiable? I suggest that Thoreau (in his essay “Civil Disobedience’) provides the best guidance by grading the response to three levels of injustice:
“If the injustice is part of the necessary friction of the machine of government, let it go, let it go; perchance it will wear smooth — certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine”.
Clearly from the above we can infer that for different gradations of offence there are different gradations of civil disobedience; but what are the defining features common to all and when does civil disobedience become revolution or terrorism? Firstly civil disobedience must be non-violent, the goal of civil disobedience is not an attempt to challenge the existence of the State (the machine in the Thoreau’s example) rather it is to challenge a particular law or action of the State.
Secondly civil disobedience is not an open invitation to anarchy. Even though environmental impact may be occurring the protestor has the responsibility to uphold the fundamental integrity of civil order. Put simply if you do the crime you must be prepared to do the time, not as a purchase price for the crime but as a demonstration of willingness to act in other regards with the laws of the State.
Thirdly the action must be motivated by a widely held belief in the moral weight of the case rather than self-interest. Environmental organisations are frequently prone to using extreme rhetoric to describe environmental impacts, painting a dire picture of disaster, species extinction and habitat degradation (this is not to say that these calamities are not occurring, but to make the claim that the taking of a hundred or so minke whales from the Southern Ocean is likely to lead to a threat of extinction is plainly a gross exaggeration). It is easy to imagine that those immersed in such extreme rhetoric could veer from a moral to an ideological motivation. Information reported in the West Australian newspaper’s website suggests that the trio are long-term activists. Therefore to guard against misjudgement that may arise from lack of perspective a prudent person would seek the counsel of a reasonable third party informed of the facts prior to undertaking a course of civil disobedience. It is not apparent that any such prudent counsel was sought.
Now to the three activists: heroes, criminals or terrorists? The action in question was non-violent (as opposed to some other Sea Shepherd anti-whaling actions), this means we can immediately rule out terrorism, which is defined in Australian Law (Criminal Code s.100.1) as an act of criminal violence intended to coerce the government for an ideological purpose. As discussed above civil disobedience is often by its very nature, a criminal act, therefore the allegation of criminality is close companion to civil disobedience. The three activists will most likely be facing criminal charges in Japan and it is for a court to determine the substance of any allegations of criminality. The surmised intention of the act included raising awareness and coercion of the Federal government to change policy and actively intervene to prevent scientific whaling in the Southern Ocean. There is widespread public support for this position within Australia, indeed since the Federal Labor government went to the 2007 election promising to end whaling in the Southern Ocean the action has additional moral weight precisely because it aims to make the government to do what they promised to do. Does this make them heroes? It probably does within their circle of co-extremists, but I would venture to say they are not heroes, merely rebels looking for a cause.