Whale Wars, Round II! U.S. Court of Appeals Issues Preliminary Injunction Against Sea Shepherd “Pirates”

by Julian Ku

In a tartly worded opinion, the U.S. Court of Appeals for the Ninth Circuit has reversed a lower court and granted a group representing Japanese whalers a preliminary injunction against the protest activities of Sea Shepherd.  Here is Judge Alex Kozinski’s  instantly quotable opening to the opinion:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Interestingly, the Cetacean Institute (the group representing Japanese whalers) had sued Sea Shepherd under the Alien Tort Statute.  In particular, Cetacean alleged that the Sea Shepherd groups had engaged in “piracy” within the meaning of customary international law, and the Court (as you can see above) agreed with them.

The Ninth Circuit opinion doesn’t seem troubled by tricky questions such as whether piracy is one of the causes of action recognized by the Alien Tort Statute after Sosa v. Alvarez Machain, but given the language in that opinion, I suppose it is safe to assume piracy is indeed an acceptable ATS action.  I wonder more about Cetacean’s basis for a preliminary injunction pursuant to violations of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Convention on the International Regulations for Preventing Collision at Sea.  I am going to assume the Court found the former two treaties self-executing, but a little analysis here would have been helpful.

I’m no expert on the definition of piracy, so take this with a grain of salt. I am with the Court on the view that the “violence” element was satisfied, but I am less confident of the Court’s conclusion that “private ends” needed to satisfy an element of piracy includes goals other than financial enrichment.  This seems a reasonable interpretation in the context of this case, but it is also an obviously reviewable and debatable issue on appeal to the full en banc court.

So this case is far from the last word. Sea Shepherd has made clear that they will appeal this order and in any event ignore the U.S. court’s order on the theory that Sea Shepherd (Australia) is unconnected with the defendants in the U.S. proceeding. The Court of Appeals here seems to have ordered the removal of the lower court judge from this case and stands ready to issue orders to further enforce its preliminary injunction.   Whale Wars will go on.


21 Responses

  1. Funny how violations of international law have to be unbelievably well-established in ATS litigation when the defendants are right-wing, but anything even vaguely resembling a violation of international law is fine when the defendants are left-wing.

  2. The treatment of the “private ends” requirement is somewhat quick in the 9th Circuit opinion, but following the case law back to it origin shows that Judge Kozinski is right.

    Consider the 4th Circuit decision from last year, where the “private ends” issue is raised briefly but not expressly fleshed out. US v. Dire, 680 F.3d 446, 463 (4th Cir. 2012). In Dire, the 4th Circuit discussed extensively  In re Piracy Jure Gentium, [1934] A.C. 586, where the Privy Council held that robbery is not an essential element of piracy. Along the way, the Privy Council cited approvingly language from other European sources stating that “private ends” required for piracy does not necessarily mean for “private gain,” but could include sailing for “vengeance or for anarchistic or other ends.”

    The 4th Circuit analyzed and essentially followed Piracy Jure Gentium, see Dire, 680 F.3d at 457-58 & 468-69. In turn, the 9th Circuit cited and followed Dire, see Slip Op. at *4. Because robbery is not an element of piracy, and similarly, “private ends” required to show piracy should not be conflated to mean “private gain.” Because the Sea Shepherds are doing their best to foul propulsion equipment, intentionally collide with and otherwise harass the whalers, that sounds an awful lot like sailing for vengeance or other anarchistic ends. 

  3. Actually, what Sea Shepherds does sounds absolutely nothing like “vengeance or other anarchistic ends”; it sounds like a political act motivated by opposition to the barbaric, and widely internationally condemned, practice of whaling.  The British case Tim mentions does indeed support the conclusion that piracy does not require pecuniary gain — but it does not suggest that political acts qualify as piracy.  Nor is that surprising: as I note in my post, it has long been accepted that although states may criminalize political acts involving violence on the high seas, such acts do not qualify as piracy under international law.

  4. Without devolving into a policy debate over the justness of the Sea Shepherds’ cause, what if the following transmission went out over bridge-to-bridge right before a collision with the whalers:

    “I’m mad that you’re killing whales, so I’m going to ram your ship.” 
    Isn’t that vengeance? So, if vengeance, then piracy, right?
    And even without that radio transmission, isn’t that what the Sea Shepherds are doing? Isn’t that what their TV show depicts?

    Again, a policy debate over Japanese whale “research” is beside the point. Either a private group is justified in using force against another on the high seas, or it is not. Since Grotius, the understanding has been that use of force on the high seas when not sanctioned by a sovereign is piracy. While there might be drafting history to the contrary, I’ve found is no distinction between “private” and “political” acts in the case law. The UK Privy Council (80 years ago), the 4th Circuit (last year) and now the 9th Circuit have all expressed this understanding, as have the Supreme Court and a small handful of US District courts in the mid-19th century.

    If the Sea Shepherds get a pass because we like their policy goals, then why not the PLF when they hijacked the Achille Lauro? Isn’t hijacking a ship a “political act motivated by opposition to the barbaric, and widely internationally condemned” practices of Israel? Therefore, no piracy?

    That can’t be right. The international community can’t give the PLF a pass, nor can it give the Sea Shepherds a pass. The high seas are beyond the reach of any sovereign, so use of force there must be with state sanction, else it is piracy. (Perhaps it is the very lack of state sanction that makes the ends “private.”) The 9th Circuit panel got this one right.

  5. Do the whalers have a right of preemptive self defense? If the Sea Shepherds have made their intentions clear by previous attacks, can not the whalers just blast them out of the water before they attack again.
    I agree with Tim that it seems very troubling if the political motivation of the attackers allows them to escape legal culpability for their actions.

  6. It is important for readers to understand that Tim is completely misrepresenting the 1934 British case, In re Piracy Jure Gentium.  First, the Privy Council simply held that piracy included attempted robbery in addition to actual robbery, so the Lords did not even need to address whether politically-motivated violence could qualify as piracy. Second, the Privy Council specifically declined to endorse a general definition of piracy beyond robbery and attempted robbery.  Indeed, the Lords specifically refused to do so immediately after quoting the “vengeance or for other anarchistic or other ends” language, which came from the Romanian response to the League of Nations report. Third, the judgment cites with approval both the League of Nations report and the commentary to the Harvard Draft Convention, each of which — as I discuss in my post — specifically excludes politically-motivated violence from the definition of piracy.  

  7. Kevin,

    The traditional definition of piracy, as excluding politically-motivated acts, does not in any way allow attackers “to escape legal culpability for their actions.”  As the sources I discuss in my post make clear, states are free to punish those acts under their domestic law.  Those acts simply do not qualify as piracy under international law.

  8. The text of In re Piracy Jure Gentium can be found here.

  9. Kevin: I respect your point of view, and it is perfectly defensible. However, the great weight of authority opposes your argument. 

    The recent US v. Dire case speaks directly to your distinction between domestic and international law. Incorporating the UNCLOS definition of piracy into the domestic crime, the court allowed piracy charges to proceed. U.S. v. Dire, 680 F.3d 446 (4th Cir. 2012). The 4th Circuit held that the UNCLOS (international law) definition of piracy is the correct definition of piracy to apply under US domestic law. Id. at 469. Therefore, the crime of piracy under U.S. municipal law–piracy “under the law of nations–is considered coextensive with the international law definition.

    Yes, the Harvard treatise opines about political ends perhaps taking an act outside the definition of piracy.

    By contrast, consider the case of The Ambrose Light, a would-be warship cruising under a commission issued “in the state of Bolivar, in the United States of Columbia.” The insurgent group that purported to be the “United States of Columbia” did not acquire sovereignty or belligerent rights, and it was unrecognized by any nation at the time. Because the insurgents issuing the commission were not a sovereign power (or belligerent equivalent), the acts of the vessel were unlawful, and its acts “must be viewed by the court as the acts of mere private, unauthorized persons.” The Ambrose Light, 25 F. 408, 421 (S.D.N.Y. 1885). Therefore, the Court held “the Ambrose Light to have been lawfully seized, as bound upon an expedition technically piratical.” Id. at 443. 

    There is no suggestion in The Ambrose Light that the political nature of an act takes it out of the definition of piracy. Quite the opposite. The lack of either belligerent rights or sovereign permission to use force at sea makes a vessel’s actions “the acts of mere private, unauthorized persons.” As I read The Ambrose Light, someone can still be a pirate when using force at sea without permission of a sovereign, even with political goals in mind.

  10. Two caveats about The Ambrose Light: (1) a later de facto recognition of a state of belligerence required the vessel be released anyway. Id. at 443-447; (2) it was a case about vessel condemnation, not a criminal prosecution for piracy. Still, if the M/V Bob Barker or other Sea Shepherd vessel were seized and brought into a U.S. port, The Ambrose Light could be very convincing precedent for condemning the vessel.

  11. Some more commentary here:
    I might add that counting Sea Sheperd as a belligerent might get it into more legal trouble than it saves. If Sea Sheperd is engaged in private war, it would be a violation of neutrality, actionable perhaps under the Neutrality Act and directly under the ATS…
    -Eugene Kontorovich

  12. Although a self-proclaimed leftist, I agree with Judge Kozinski’s opinion as a legal matter.  To answer some of Julian’s concerns, there is no need to wonder whether piracy can form the basis of an ATS claim as the Supreme Court explicitly cited piracy in Sosa, along with offenses against ambassadors and violations of safe conduct, as precisely the sort of crimes Congress had in mind when it first enacted the ATS. And although I am not familiar with COLREGS, the US has implemented the SUA Convention (see 18 USC 2280) – thus the question of self-execution does not arise.
    Also, there is a very strong argument – one with which I agree – that the traditional understanding of piracy excluded only acts by states or by rebel forces that are akin to states. That is, the public/private distinction included in the definition of piracy only excludes from piracy those acts for which there is otherwise international responsibility. (The opposite of private is not “political” but “public”). Guilfoyle, one of whose articles is cited in Kozinski’s opinion, has articulated this argument very well. To plug myself, I have also collected the historical examples of this distinction in an article published last year in the Journal of International Criminal Justice (also available on SSRN: http://ssrn.com/abstract=1967746).

  13. Laugh.  Kevin Heller is so very predictible.  Policy preferences for him always trump law.

  14. George,

    Ooh, zing! You got me. A lesser reader might think my discussion of the League of Nations report, the Harvard Draft Convention commentary, the legislative history to the High Seas Convention, and the actual text of the Privy Council case might qualify as a legal argument. But you know the truth, that it’s actually all just policy. Kudos for finding me out!

  15. Well, Prof. Heller, that’s not a good argument.  You have proved only that you are skilled (as are most of us law school graduates) in dressing up your policy preferences in the garb of legal reasoning.  (What some of my friends used to call mystification.)  To refute George, you would have to point to some instances where legal reasoning led you to conclusions you found unwelcome on policy grounds.
    There might be such instances, I freely concede.  I’m only marginally familiar with your work.

  16. WM13,

    George accuses me of letting policy preferences trump law in response to a post that made no policy claims whatsoever — and it’s my burden to rebut him?

    But fine.  Here are three examples, all of which I have discussed extensively on the blog: (1) I do not believe that Israel is legally occupying Gaza, though I dislike that legal conclusion immensely; (2) I believe that a wide variety of drone strikes are legal, even though I am completely opposed to the the use of drones on policy grounds; (3) I do not believe IHL requires soldiers to avoid killing unarmed and defenseless combatants who have not formally surrendered, even though I wish an obligation to capture existed.

  17. The argument that attacks such as Sea Shepherd’s are “political” ought to make no difference to anyone. If another court were to use some narrow definition of “piracy” to avoid having them qualify, we could equally truthfully call the attacks “terrorism” or even “war”.

    It is fundamental that you simply cannot go out and try to forcibly stop others from engaging in a lawful occupation, unless you are a nation-state and willing to declare war. Period. No kind or degree of political zeal can excuse an exception under any circumstances.

  18. Response…The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. Cetacean has such a permit from Japan.
    So now that the Japanese via Mr Hayashi did not make any mention of the scientific rationale behind the program.

    Instead, he said that eating whale meat was an integral part of Japanese culture, and pleaded for other nations to respect Japanese tradition.

    “I don’t think there will be any kind of an end for whaling by Japan,” Mr Hayashi, who was handed oversight of the country’s whaling programs in December, said.

    Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security I think it’s very important.

    “We have never said everybody should eat whale, but we have a long tradition and culture of whaling.

    “So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.

    “In some countries they eat dogs, like Korea. In Australia they eat kangaroos.

    “We don’t eat those animals, but we don’t stop them from doing that because we understand that’s their culture.

    “Whaling has long been part of traditional Japanese culture, so I just would like to say ‘please understand this is our culture’.”

    Traditional whaling was purely coastal, the Japanese adopted whaling AFTER the second world war and adopted Norwegian methods. tactics and used Norwegian ships!! How cultural is that!!

    Japan issues “itself” a permit for Research whaling, but this is commercial whaling so their permit is invalid under IWC rules!! hopefully this will be raised during the ICJ by Australia and New Zealand.

  19. Professor Heller,
    While I don’t believe you allow your policy preferences to drive your legal analysis, I think the tone you take in your writing encourages others to come to that conclusion (I believe I’ve addressed this point before). Most of your writings, at least in this forum, has struck me as rather sanctimonious or self-righteous, as though the conclusion you’re advocating ought to be self-evident to everyone who’s not a moron or being intellectually dishonest. I would venture to say most questions in law worth discussing are not so clear-cut, and it’s difficult to accept that every issue you happen to have an opinion on is exactly so clear-cut.

    Put another way, I probably shouldn’t be able to tell which posts are yours just by the argumentative titles, but I’m right more often than I’m wrong. I think that tone leaves your substantive points more vulnerable than they ought to be, even when well-reasoned.

  20. Peter,

    I appreciate the input, but I wish you would provide some specific recent examples. None of the titles of my piracy posts, for example, are argumentative in the least.  I don’t even think the tone of the posts is particularly strong — especially in comparison to Eugene’s tone in responding to me at Volokh and the incredibly sanctimonious tone of Judge Kozinski’s opinion.

  21. Professor Heller,
    You’re correct about the titles of your recent piracy posts. On the other hand, for recent examples, I’d point to your Libya posts toward the beginning of February, or your commentary regarding Palestine at the UN on January 23rd, or the pieces immediately preceding that discussing Martin Luther King, Jr.’s legacy and the U.S. military.

    To be clear, I’m not suggesting that every time you post it’s argumentative or condescending. However, of the authors on this site, when an article has an argumentative title, it seems to inevitably be yours. Professor Kontorovich’s response, on the contrary, struck me as fairly dispassionate, in contrast to your evident sense of outrage over the Japanese whalers’ actions (looking at the comments to Professor Kontorovich). That expressed sense of outrage, however well justified, may lead some readers to conclude your legal analysis is following your policy preference, rather than the other way around.

    I’m not even saying you’re wrong on the merits of the question. As a reader, though, when I’m undecided and not knowledgeable in the field, I tend to naturally gravitate toward opinions that don’t insult me if I held a different, or undecided, view. Does that help clarify my earlier comments?

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