Whale Wars Seeks a New Forum: The U.S. Supreme Court

by Julian Ku

Sea Shepherd, the activist group that has been aggressively protesting Japanese whaling practices, has filed a very interesting petition for certiorari with the U.S. Supreme Court.  Readers may recall that Sea Shepherd was sued by a group representing Japanese whalers under the Alien Tort Statute (ATS).  The Court of Appeals for the Ninth Circuit held that Sea Shepherd’s actions of boarding the Japanese whalers and obstructing them could fall within the definition of “piracy” for the purposes of jurisdiction under the ATS.

The best argument for Sea Shepherd is that the definition of piracy adopted by the Ninth Circuit cannot meet the Supreme Court’s “Sosa” standard for requiring ATS claims to be “universal” and “specific” under international law.  I think there is some force to this argument, although I find their disparagement of the UN Convention of the Law of the Sea’s definition of piracy a little odd.  In any event, the question may turn on the definition of “private ends” that UNCLOS requires as an element of piracy.  I don’t have a strong view on this, but I refer our readers to Kevin’s critique of the Ninth Circuit conclusion that private ends can include political activism, and Eugene Kontorovich’s contrary view in support of the Ninth Circuit. The petition for certiorari smartly frames this as a “Sosa” issue, which would ordinarily mean that the uncertainty as to the applicability of “private ends” here should defeat ATS jurisdiction.  I am not sure the petitioners will get much traction, given the unusual and narrow facts of this case, but no doubt this case is worth watching.

http://opiniojuris.org/2015/05/07/whale-wars-seeks-a-new-forum-the-u-s-supreme-court/

4 Responses

  1. Thanks for an interesting post . To my best knowledge , this is the issue :

    If hunting whales, in high seas, in such or such circumstances, is forbidden , according to the international law, and the observation of such activists was reasonable in light of the given specific situation (ad hoc) then:

    The term: ” private” should be split off to two observations:

    One is the : purpose , here we deal then with public act, and not a private one.Since, the circumstances, prima facie, indicated clearly that an offense, took place, in front of their eyes, and they were obliged to act (according to what law or provision, this is a hell of one, but, they were obliged).

    Yet , it was private , in that sense , that they weren’t agents of any state , and any enforcement of law agency .

    So , typically , the purpose should prevail , and define the action as : public one , hence : not piracy , to my best one .

    Thanks

  2. A “whale” of a case?
    It is well known that political acts are not piracy under customary international law, which is relevant to treaty interpretation re: the 1958 Conv. — we are not a party to UNCLOS, but it can reach nationals of a party.

  3. This is certainly an interesting development, and whilst I would disagree with Sea Shepherd’s ‘tactic’ of ramming a poorly maintained fuel tanker in a vulnerable Antarctic environment, they do arguably have a point on the ambiguities of the breadth of the term ‘private ends’. Whilst it may be ‘well known’ political acts are not piracy, sadly the repeated statements by academics to that effect does not make it so. Reviewing the history of the term, whilst the insurgency situation was a clear cut exception to piracy jurisdiction, the door was left open to other actors being classified as purely political actors. Yet sufficient cases and practice have not arisen in relation to violent political activists to help define the breadth of this exception beyond insurgents. Sadly for Sea Shepherd the few cases that have arisen, such as Castle John, have decided that the exception does not go beyond insurgents. Violence and the enforcement of maritime law is to be the exclusive competence of states (and historically, separatist states ‘in the making’). From the standpoint of the rationality of allowing universal jurisdiction on the high seas to protect the freedom of navigation, the freedom of fishing and the freedom of scientific research this arguably makes sense and should be supported as the correct direction for international law. On a practical note, the exclusion of political activists would play havoc for any state enforcement vessel coming upon a violent confrontation at sea.

    On a side note, it seems a bit odd that Sea Shepherd raise the lost revenue resulting from the halt of their Antarctic campaign. If one was arguing private ends is ‘for financial gain’, the suggestions that we are losing lots of money thanks to this injunction might not be the best approach.

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