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.

Russia Charges Greenpeace Protesters with Piracy, When Will the Netherlands File Its ITLOS Action?

by Julian Ku

I’m late to this story, which has already outraged Greenpeace and other supporters worldwide.

Greenpeace activists who were seized while protesting against Arctic oil drilling face up to 15 years in a Russian jail after being formally charged with piracy.

The 14 charged include four British nationals. Kieron Bryan, a freelance videographer, and the activists Alexandra Harris, Philip Ball and Anthony Perrett were all accused of “piracy as part of an organised group”. The offence carries a prison sentence of between 10 and 15 years.

Altogether there are 30 activists from 18 different countries being held in jails in the Russian port of Murmansk. They were travelling aboard the Arctic Sunrise, a Greenpeace ship that last month mounted a protest against the Prirazlomnaya oil rig. The drilling platform, in the Pechora Sea, is operated by the Russian energy group Gazprom. As two activists tried to scale it, Russian border guards descended on to the boat from helicopters and escorted it back to Murmansk with those on board kept under armed guard.

Professor Eugene Kontorovich has been first out of the box in the U.S. blogosphere, denouncing the piracy charges as “groundless.”  Based on the facts as alleged, I think he is right. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way).

So assuming Eugene is right (which is always a safe bet), are there any international legal remedies for groundless piracy charges?  In fact, Russia has recognized the competence of the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS Art. 292 “in matters relating to the prompt release of detained vessels and crews.”

So it seems that the Netherlands (since the Greenpeace ship was Dutch-flagged) should be able to bring an action under Article 292 arguing that the detention of the Greenpeace ship was not in compliance with UNCLOS (and citing Eugene’s point about how this isn’t piracy). Article 292 allows the Netherlands (the flag state) to send the question of the legality of the detention to ITLOS 10 days from the time of the detention. ITLOS seems to have the authority to determine whether there should be a release, and should have the authority to order Russia to release the vessel and crew upon posting of a bond.

I see no legal obstacle to such a Dutch action, and I think the 10 days waiting period has run.  The Dutch Government has apparently demanded the release of the ship and crew, and has sent consular officials to see the detained activists.  I assume the next step is a legal action at ITLOS. They might as well do this now, since any ITLOS hearing will take another 15 days at lest.

It is worth noting that Russia has already been subject to an Art. 292 ITLOS proceeding before, in the 2007 incident involving 2 Japanese fishing vessels.  ITLOS ordered the release of the one of the vessels upon posting of a 10 million rouble bond, and Russia complied with this order within 10 days. I am curious whether Greenpeace would be willing to post a bond here, or whether it could be so easily settled.  Still, with this precedent,  I would expect an ITLOS filing any day now.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can’t be piracy because they did not attack a “ship”; and 2) Russia’s President Putin seems to have admitted this can’t be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to “seize the rig by force”.]

U.N. Considers Special Courts for Pirates

by Julian Ku

The U.N. Security Council heard a proposal yesterday for the establishment of special courts in Somalia and Tanzania to try suspected pirates.

25 January 2011 – The United Nations special envoy on maritime piracy off the coast of Somalia today proposed the setting up of two special courts inside the country and one in Tanzania to try suspected pirates, saying the problem in the Indian Ocean was getting out of hand and required “strong and decisive action.”

Jack Lang, the Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, said the international community should work towards “Somaliazation” of responses to piracy by helping local authorities in the regions of Puntland and Somaliland to enhance their judicial and prison capacities in order to prosecute and jail captured pirates.

In his report to the Security Council, Mr. Lang also proposed the establishment, for a transitional period, of a Somali “extraterritorial jurisdiction court’ in the northern Tanzania town of Arusha to deal with piracy cases.

He told the Council, as well as a news conference following the meeting, that the raiders who seize ships and sailors and demand huge ransoms are becoming “masters of the Indian Ocean” with their increasingly sophisticated means of carrying out the criminal actions.

The international component of the cost to train judges, prosecutors, lawyers, prison guards is “essential,” Mr. Lang said, adding that the UN, the African Union, the European Union and other organizations should contribute.

The cost of the measures he has proposed is estimated at about $25 million, a “relatively modest” expense compared to the estimated $7 billion which he said was the cost of piracy.

This seems like a reasonable start, although I think the details are crucial. Nor is this a complete solution, since we are talking about two courts (and two prisons).  But in combination with self-help measures, and perhaps loosening the rules of engagement for naval forces defending against pirates, the courts can certainly help.  Locating a court in Somalia seems a good idea, hopefully it won’t become another NGO boondoggle.

How to Define Piracy (Cont’d): A Critique of U.S. v. Said

by David Glazier

[We are pleased to have David Glazier, a professor of law at Loyola Law School Los Angeles, share his thoughts on the U.S. District Court’s recent interpretation of the piracy statute in U.S. v. Said]

As I read Judge Jackson’s decision, the crux of his holding boils down to the following syllogism:

(1) Federal criminal statutes must be interpreted according to the meaning of the words at the time they were enacted;

(2) The language in the current piracy statute was originally enacted in 1819; therefore,

(3) The current definition of piracy must be that understood in 1819.

The facts stated in the indictment are simply that “at least one person on Defendants’ skiff shot a firearm” at the USS Ashland. This act must either fall within the legal definition of piracy or the judge must dismiss this count. A literal reading of the Smith language excludes mere attempts at robbery, hence the decision to dismiss.

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I see two flaws in the court’s logic.

First, as Eugene Kontorovich has already noted, the Smith holding simply states that robbery is piracy (all that was necessary under the facts of that case); it doesn’t say that only robbery is piracy.

Second, since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein. While the court does find some modern sources stating that the definition of piracy is unsettled in customary international law, that view flies in the face of the two widely ratified treaties, the 1958 High Seas Convention and the 1982 UN Convention on the Law of the Sea which include the same definition in reasonably precise language. Given Senate advice and consent to the ratification of the 1958 treaty, it seems to me that language fairly becomes the operative definition of piracy for U.S. courts under the last in time rule and the supremacy clause. So even a judge with an aversion to international law in general can ground their decision in written federal law. Oddly, however, the court treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

The treaty language, ratified by both the U.S. and Somalia, surely satisfies the constitutional due process requirement which the court noted requires fair warning that the defendant’s conduct is proscribed. Surely it is fairer to hold a Somali defendant to notice of a treaty his (admittedly dysfunctional) nation has ratified than to a foreign 1820 Supreme Court decision. I haven’t read any of the parties’ filings, but from the text of the opinion it appears that both sides engaged in a battle of law office history, using often obscure historical examples to bolster their positions. I would hope that on appeal, and certainly in the other ongoing Norfolk piracy case with similar facts, the government will argue for the application of the treaty language as effective law rather than as a mere secondary source.

My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.

How to Define Piracy (Cont’d): U.S. Judge Dismisses Piracy Charges

by Julian Ku

In the first U.S. court opinion on piracy since 1820, a U.S. judge in Norfolk, Virginia has dismissed piracy charges against Somali defendants in United States v. Said. The Court held that attempted piracy is not piracy for the purposes of U.S. criminal law.  (h/t  Eugene Volokh).

As I mentioned in an earlier post, the relevant U.S. statute criminalizing piracy leaves its definition to “the law of nations.” I guessed (wrongly) that the Court would adopt a Sosa-like approach to incorporating norms of international law into U.S. law and find that attempted robbery at sea sufficiently well-accepted by contemporary international consensus to support a criminal law violation.  To my surprise, the Court seems to have held that it is obligated to use the definition of piracy as it was understood under the law of nations in 1819, when the U.S. piracy statute was enacted. It refused to rely on contemporary international definitions of piracy on the grounds that they are either irrelevant or too uncertain to constitute a clear definition.

I don’t know that much about the law of piracy under contemporary international law, but I am a bit surprised that there would be the lack of consensus on the question of whether attempt constitutes piracy.  My impression is otherwise, and in fact none of the sources the Court cites for the proposition that piracy is undefined under contemporary international law seem to be talking about the attempt issue.  Prof. Eugene Kontorovich has more discussion of the case over at the Volokh Conspiracy, and he seems to think that the Court is just wrong on this point.  Piracy definitions may be controversial, but probably not on this point.

And like Prof. Kontorovich, I am a bit unsure what I think of the result here.  I understand that a judge would want to give the benefit of any doubt to the criminal defendants here, but I am doubtful of the Court’s seeming embrace of the “frozen in 1819” approach to interpreting the piracy statute.  Given explicit delegation of interpretive power by Congress, the international consensus and executive branch practice in favor of including attempts as part of “piracy,” I am tempted to side with the government here.  But the Court’s result is certainly defensible.  It is also appealable, although the government may not bother since they have plenty of other non-piracy charges to use against the defendants.

How to Define Piracy Under U.S. Law and the “Law of Nations”

by Julian Ku

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court.  Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”.

Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. “We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time,” says the public defender, Mr. Kamens.

I love that the defense lawyers are taking a page from Justice Scalia’s textualist approach to statutory interpretation. And it is a sort of compelling argument, although I’m not sure it is right.   Congress has criminalized “piracy as defined by the law of nations”.  It is certainly plausible that they intended to authorize federal courts to interpret the law of nations, as it evolved, when defining piracy.  But it is also plausible to me that Congress would have intended for the courts to apply only definitions of piracy at the time the statute was enacted, especially since this is a criminal statute.

In Sosa v. Alvarez-Machain, the Supreme Court considered the phrase “law of nations” in the quite different context of the Alien Tort Statute.  If we were to adopt that approach, the courts could only adopt definitions of piracy that are as well settled under the law of nations today as they were at the time the piracy statute was enacted.  I bet the lower and appellate courts that consider this question will follow the Sosa approach.  Which probably (although not necessarily) means the pirates here are out of luck.

Did the Israeli Defense Forces Commandos Commit “Piracy”? Nope.

by Julian Ku

I tread warily into the debate over the Israeli commando raid on the Gaza flotilla.  There has been no shortage of commentary and reactions abroad (here in the U.S., it seems most folks are unmoved by the whole incident).  Of course, most of the facts are hotly disputed and, frankly, will remain hotly disputed.  Still, let me start by advising IDF critics to drop the silly accusation that Israel committed “piracy,” which various folks have made here, here, and here.  The IDF raid may well have violated international law governing disproportionate and excessive use of force against non-combatants (although the IDF claims their commandos were armed only with paintball guns).  But whatever can be said about the legality of the raid, it was not, as a legal matter, piracy. Let’s go to the U.N. Convention on the Law of the Sea, Article 101:

Piracy consists of any of the following acts:

(a) 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:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(emphasis added).  I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually).  And, in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.  (Given my recent brain cramps, I am of course happy to be corrected here by piracy experts out there, but I think this is right).

So can we drop the stupid piracy meme?  There are some very hard legal issues here:  Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force?  (I have no idea).  This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

Somali “Pirate” Pleads Guilty and Avoids Life Sentence

by Julian Ku

The young Somali captured last year in dramatic U.S. Navy operation has plea bargained himself into a minimum 27 year sentence.

A Somali man has pleaded guilty in New York’s court to seizing a US ship and kidnapping its captain last year.

Abdiwali Abdiqadir Muse now faces a minimum of 27 years in prison. He is expected to be sentenced in October.

Muse is the only surviving attacker on the Maersk Alabama merchant ship off Somalia’s coast in April 2009.

A couple of observations about this result, which should caution folks excited about the effectiveness of U.S. federal courts in combatting piracy. (It appears the defendant avoided a piracy conviction and settled for a lesser charge).

1) Timing: Muse was captured in March 2009 and charged with, among other things, “piracy as defined in the law of nations,” under 18 U.S.C. 1651. It has taken 13 months to get a plea bargain on a lesser charge???  If we were just going to plea bargain him, why did it take so long?

2) Evidence: The logistics of finding translators, and dealing with classified evidence, is another reason these trials are going to take a fair amount of time.  Case in point: the federal trial in Norfolk, Va of another group of Somali pirates was recently delayed for five months just so the parties could sort through classified evidence and find translators.

I don’t say federal courts are doing a bad job here.  But the logistical difficulties are going to make this a very weak and ineffective deterrent to further piracy. As Anne Applebaum notes, the other option was tried by the Russians recently when they “released” a group of Somali pirates on a dinghy 350 miles from shore without an navigation equipment.  The 21st century version of “walking the plank”?

Dutch Navy Re-Take Ship Captured by Pirates

by Julian Ku

Fascinating video  of a Dutch Navy strike team recapturing a German vessel that had been captured by Somali pirates. It shows just how dangerous, expensive, and difficult it is to combat piracy.  It looks cool, but frankly, the Somali pirates have the Dutch and everyone else outnumbered.  There can’t be that many of these kinds of strike teams and there are a lot of Somali pirates.  And the pirates get to head off to the Netherlands for trial, a place much nicer than where they came from.  (UPDATE: See this FP essay which makes this point very persuasively). Still, kudos to the Dutch Navy (actually, I assume it is the Dutch Marines) for doing their part in this Sisyphean battle.

U.S. Will Prosecute More Pirates in the Eastern District of Virginia

by Julian Ku

Although the U.S. is already prosecuting a pirate captured last year in New York, I hadn’t realized the U.S. was going to be trying other pirates in federal court as well.  But since Kenya has stopped accepting pirates for prosecution in their courts, I guess it makes sense that the U.S. and other countries will have to step up to the plate. At least 6 are already en route, with up to 21 slated for future trials.  Time to set up shop in Norfolk as a pirate defense lawyer!

Thus far, the only pirates that will be tried here will be ones charged with attacking U.S. vessels or property.  But unless I’m mistaken, I don’t think there is any requirement that the pirate have a connection to the U.S. in order to stand trial.  18 U.S.C. 1651 seems to define piracy very broadly:  “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” This statute has not been used recently, to say the least, since the last reported case I found was in 1958. Moreover, in its earlier incarnation, courts construed it somewhat more narrowly to require at least the involvement of a U.S. ship (although not the involvement of a U.S. citizen) See U.S. v. Furlong, U.S.Ga.1820, 18 U.S. 184. Still, in theory, one could interpret the statute to authorize universal jurisdiction.  If Kenya won’t take anymore pirates for trial, we might see a test of the universal jurisdiction scope of Section 1651.

More Ideas on How To Battle Pirates: “Blockade” Somalia

by Julian Ku

Here’s another interesting report on the ongoing battle against Somalia-based pirates.  The upshot: some progress is being made, especially with private security forces (including one which uses sound waves to push away approaching pirates).  But legal limitations continue to limit the effectiveness of both naval and private self-defense.

“No commanding officer of any ship wants a situation where he used force and then is told a week later that he shouldn’t have.  That he violated the rules and under international law maybe murder would be applied to that.  It’s a dangerous line to cross,”

One former naval officer suggests creating an in-shore “maritime police” force.

“The proposal is send the warships home.  And let’s get an international task force together of maritime police and put them inside Somali territorial waters under U.N. auspices, with a U.N. Security Council resolution giving them authority,”