Sea Shepherd, Piracy, and the “High Seas”

by Kevin Jon Heller

My previous posts (see here for the most recent) have explained why Judge Kozinski’s opinion in the Sea Shepherd case wrongly considers a political end to be a private end. In this post I want to highlight what is ironic — though not technically incorrect — about Judge Kozinski’s conclusion that Sea Shepherd committed an act of piracy on “the high seas.” That is an essential element of piracy; UNCLOS art. 101, for example, defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed… on the high seas, against another ship.” The high seas, in turn, are defined by art. 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an  archipelagic State.”

The Japanese whaling that Sea Shepherd resisted took place near Antarctica in the Australian Whale Sanctuary (AWS), which was established by John Howard’s conservative Australian government in 1999. Here is a map of the AWS:

sanctuary-map

Did Sea Shepherd’s acts take place on the “high seas”? Not according to Australia and a number of other states. Australia has long claimed sovereignty over what it calls the Australian Antarctic Territory (AAT), the white part of Antarctica on the map, and it has also consistently claimed sovereignty over the waters adjacent to the AAT, the blue section of the map that stretches around the AAT. Those waters, which are part of Australia’s Exclusive Economic Zone (EEZ), include the AWS. A good history of Australia’s claim can be found in this law-review article by David Leary; here is the Australian government’s own statement about the AWS:

The Australian Whale Sanctuary has been established to protect all whales and dolphins found in Australian waters.

Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) all cetaceans (whales, dolphins and porpoises) are protected in Australian waters:

  • the Australian Whale Sanctuary includes all Commonwealth waters from the three nautical mile state waters limit out to the boundary of the Exclusive Economic Zone (i.e. out to 200 nautical miles and further in some places)
  • within the Sanctuary it is an offence to kill, injure or interfere with a cetacean. Severe penalties apply to anyone convicted of such offences
  • all states and territories also protect whales and dolphins within their waters.

The Australian Whale Sanctuary comprises the Commonwealth marine area, beyond the coastal waters of each state and the Northern Territory. It includes all of Australia’s Exclusive Economic Zone (EEZ).

The Australian EEZ generally extends to 200 nautical miles (approximately 370 kilometres) from the coast, but extends further in some areas to cover offshore territorial waters and islands. The Australian EEZ includes the waters around Australia’s external territories, such as Christmas, Cocos (Keeling), Norfolk, Heard and Macdonald islands.

Within the Sanctuary it is an offence to kill, injure or interfere with a cetacean. Severe penalties apply to anyone convicted of such offences.

Australia’s claim to the waters that include the AWS has been recognized by France, New Zealand, Norway and the United Kingdom — four states that have their own territorial claims in Antarctica. Australian courts have also enforced the claim, most notably against the plaintiffs in the Sea Shepherd case themselves, the Institute for Cetacean Research (ICR), which has killed thousands of whales for meat under the pretext of “scientific research.” (A recognized exception to the international moratorium on killing whales.) In 2008, as discussed in the law-review article linked to above, the Full Court of the Federal Court of Australia enjoined ICR from continuing to whale in the AWS. Here is its order:

1. The Court declares that the respondent has killed, injured, taken and interfered with Antarctic minke whales (Balaenoptera bonaerensis) and fin whales (Balaenoptera physalus) and injured, taken and interfered with humpback whales (Megaptera novaeangliae) in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B and 229C of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), (the “Act”), and has treated and possessed such whales killed or taken in the Australian Whale Sanctuary in contravention of sections 229 D and 230 of the Act, without permission or authorisation under sections 231, 232 or 238 of the Act.

2. The Court orders that the respondent be restrained from killing, injuring, taking or interfering with any Antarctic minke whale (Balaenoptera bonaerensis), fin whale (Balaenoptera physalus) or humpback whale (Megaptera novaeangliae) in the Australian Whale Sanctuary, or treating or possessing any such whale killed or taken in the Australian Whale Sanctuary, unless permitted or authorised under sections 231, 232 or 238 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

ICR has repeatedly violated the Federal Court’s injunction — which is why Sea Shepherd felt it necessary to take more direct action to protect the whales in the AWS.

So what does all this have to do with piracy? It means that no court in Australia, France, New Zealand, Norway, or the United Kingdom could consider Sea Shepherd’s actions to be piracy under international law, because all of those states view the location in question not as the high seas, but as part of Australia’s EEZ. No high seas, no piracy — full stop.

How, then, could Judge Kozinski consider the Sea Shepherd’s actions to be piracy? For one reason, and one reason only: because the United States refuses to recognize Australia’s claim to the waters that include the AWS (it wants to reserve the right to make its own claims in Antarctica in the future). Here is what Judge Kozinski says:

An Australian court has entered default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The district court’s deference to Australia’s judgment in that case was an abuse of discretion. To begin, the district court misunderstood the Australian judgment, which addressed the legality of Cetacean’s activities, not Sea Shepherd’s. Whatever the status of Cetacean’s whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia’s court orders. Additionally, comity applies only if the foreign court has competent jurisdiction. But the United States doesn’t recognize Australia’s claims of sovereignty over Antarctic waters. By according comity to Australia’s judgment, we would implicitly recognize Australia’s jurisdiction, in contravention of the stated position of our government. The conduct of foreign affairs is within the exclusive province of the Executive, and we must defer to its views.

I have no doubt that Judge Kozinski is legally correct, but it is ironic that a US court can consider Sea Shepherd to be hostii humani generis — an enemy of all humankind — only because the US refuses to accept a territorial claim made by one of its strongest allies (Australia) and supported by another ally (the UK) with whom it supposedly has a “special relationship”.

Hostii humani generis indeed — just as long as you don’t consider Australia, France, New Zealand, Norway, or the United Kingdom to be part of humankind!

http://opiniojuris.org/2013/03/01/sea-shepherd-piracy-and-the-high-seas/

5 Responses

  1. Response…
    See article 58(2) of the LOS Convention re application of article 101 in a state’s EEZ. If the waters where the whaling/protest activities are taking place are within the Australian EEZ see art. 65 regarding its competence to exclude Japanese whaling in the zone and art. 73 for the enforcement measures Australia could take.

  2. Kevin,
    I think the blue section of the map is better described as Australia’s claimed EEZ rather than its territorial waters (which extend out to only 12 nm).

  3. Thanks, Ian. I’ve updated the post accordingly.

  4. The thing about the Sea Shepherd is that they consider the Japanese Whalers as the law breakers. From that thought comes their idea that every day that they are harassing Japanese whaling ships is a day those ships cannot hunt whales – and that is the good thing that they see they are doing by putting themselves in harm’s way. They risk their lives and their liberty in this endeavor and are absolutists about it. Each of these cases keep the eyes of all on the problem of Japanese whaling. I suspect this publicity is welcomed by the Sea Shepherd. In a way the Sea Shepherd are placing states before their own contradictions in seeking to vindicate the international prohibition more strictly than states maybe have been willing to do.

  5. High seas ergo international waters or trans-boundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.[1]Oceans, seas, and waters outside of national jurisdiction are also referred to as the high seas or, in Latin, mare liberum (meaning free seas).Ships sailing the high seas are generally under the jurisdiction of the flag state;[2] (if there is one) however, when a ship is involved in certain criminal acts, such as piracy,[3] any nation can exercise jurisdiction under the doctrine of universal jurisdiction. International waters can be contrasted with internal waters, territorial waters and exclusive economic zone.http://en.wikipedia.org/wiki/High_seas

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