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