The “Private Ends” Requirement of UNCLOS in the 9th Circuit: Are Sea Shepherds Pirates?

Sea Sheperd Conservation Society Vessel

The United States Court of Appeals for the 9^th Circuit recently discussed the “private ends” requirement of the crime of piracy under international law.  In Cetacean v. Sea Shepherds, Judge Kozinski reversed the lower court and enjoined the Sea Shepherds, an international non-profit, marine wildlife conservation organization, from coming within 500 meters of any Japanese whaling vessels.  Judge Kozinski held that Sea Shepherds satisfied the “private ends” requirement of the United Nations Convention on the Law of the Sea (UNCLOS), and that they could accordingly be considered pirates under international law, regardless of their political and non-pecuniary motivation.    According to Judge Kozinski:

“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.” (p. 2).

Scholars interested in the field of maritime piracy have been most fascinated by Judge Kozinski’s discussion of the “private ends” requirement.  Many have already debated Judge Kozinski’s determination that Sea Shepherds could be considered pirates under UNCLOS, with both enthusiasm and disagreement.  Eugene Kontorovich on Volokh Conspiracy agreed with Judge Kozinski and argued that the relevant distinction under UNCLOS is between private ends committed by private parties, and other acts committed by governments.  Thus, according to Kontorovich,

“It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.”

According to Kontorovich, as long as the Sea Shepherds were acting as private parties, and not governmental agents, their actions would satisfy the “private ends” requirement, despite the fact that the Sea Shepherds’ goals may be purely political (“private” clearly means ‘non-governmental,’ rather than selfish or not selfish”).   Kevin Jon Heller on Opinio Juris disagreed, and argued instead that the “private ends” requirement of UNCLOS excludes all politically motivated acts, not simply those committed by governments or governmental agents.  According to Heller,

“politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit.”

Pursuant to Heller’s argument, as long as the Sea Shepherds were acting toward a political goal, their actions could not satisfy the “private ends” requirement and they could not be considered pirates under UNCLOS.  Both Kontorovich and Heller would apparently agree that the Shepherds’ acts could be considered acts of maritime violence under the SUA Convention.

Finally, Jon Bellish on EjilTalk! acknowledged the debate between Kontorovich and Heller, and noted that both positions had significant support in the drafting history of UNCLOS and in other international law documents.  Bellish also argued that the question of what exactly the “private ends” requirement constitutes today was more nuanced than either Kontorovich or Heller seem to acknowledge:

“The outer bounds of the private ends requirement are relatively clear. On one end, proving animus furandi – or the intention to steal for personal pecuniary gain – is not required to satisfy the private ends requirement. On the other end, it is undisputed that acts of violence committed on the high seas under state authority fail to satisfy the private ends requirement. But there is significant room between these two extremes. Just exactly where the line should be drawn between these two extremes, and on which side of that line the Sea Shepherds fall, is a more difficult issue.”

Bellish concludes by agreeing with Kontorovich, and Judge Kozinski.  Bellish notes that if one were to adopt a narrow interpretation of the “private ends” requirement and to inquire in each instance about the perpetrator’s subjective intent (whether it was private/pecuniary or political), then one would have to exclude acts of Somali “pirates” from piracy, because their alleged motivation was announced as protecting their waters from illegal fishing exploitation and environmental dumping.

While it is difficult to disagree with this argument, it is equally difficult to conclude that Sea Shepherds easily fit within the traditional paradigm of piracy.  They do not.  Their goals truly are political and non-pecuniary, and their intent belongs more in the “political” category rather than the “private” one.  The Ninth Circuit may have adopted a too formalistic approach and a too wide reading of UNCLOS in holding that they were pirates.  When interpreting UNCLOS, modern-day judges may need to resort to a more flexible approach.  Instead of adopting a strict private/public distinction when interpreting the “private ends” requirement, it would be possible for judges to adopt a presumption that private parties act for private ends, unless such parties can demonstrate convincingly that their acts had a bona fide political purpose.  Under this approach, Sea Shepherds, as private parties, would first be classified as acting for private ends, but presumably they would be able to demonstrate that their purpose is purely political.  Sea Shepherds are not pirates, although their acts of violence at sea may be reprehensible.  Kevin Jon Heller, in the above-mentioned post, quoted the following language, from an essay by His Excellency Jose Luis Jesus, a judge on the International Tribunal for the Law of the Sea:

“This requirement seems to exclude sheer politically motivated acts directed at ships or their crew from the definition of piracy. In the past the issue of whether a politically motivated act was a piratical act drew substantial support from some publicists and governments. The piracy rules, specifically tailored to handle piratical acts, were in the past stretched in their interpretation and application by some national jurisdiction and by some commentators to also cover, by default, other unlawful, politically related, acts against ships and persons on board, such as terrorist acts….Today, however, especially after the adoption of the SUA Convention, it would appear to be a lost cause to continue insisting on considering such a politically-motivated act as piracy. If, in the past, politically-motivated acts of violence or depredation against ships and persons aboard, short of being piracy, were left out of the international regulatory system, as it were, today they are covered by Article 3 of the said SUA Convention.  Likewise, the ‘private ends’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the “private ends’’ criterion seems to be excluded. “

I agree with Judge Jesus, and Kevin Jon Heller, and would encourage courts to adopt a more flexible approach in their interpretation of the “private ends” requirement.