Are Sea Shepherds Pirates? The United States Supreme Court May Decide Soon

Sea Shephers’ Activity Against Japanese Whaling Vessel http://www.seashepherd.org/news-and-media/2015/05/27/sea-shepherd-seeks-us-injunction-against-japanese-whaling-1695

The Supreme Court of the United States may decide in the near future whether Sea Shepherds are pirates.  The Sea Shepherds, a marine conservationist not-for-profit organization, which has been the subject of an injunction requested by The Institute for Cetacean Research (ICR), a Japanese whaling company, and issued by the Ninth Circuit, has petitioned the Supreme Court for a writ of certiorari, asking the Court to review the Ninth Circuit’s decision to issue the injunction.  The Ninth Circuit had determined that the Sea Shepherds’ activities – attempts to interfere with whaling activities by throwing bottles of a foul-smelling but benign substance called butyric acid on the decks of whaling ships, towing lines across the bows of such vessels in an attempt to entangle their propellers and slow them, and piloting its own vessels near the whaling ships to impede whaling, in a way that rendered collision likely – constituted piracy.  Because of the piracy categorization, the Ninth Circuit proclaimed that it could assert extra-territorial jurisdiction for the purposes of supporting the injunction issued against Sea Shepherds (the injunction, issued sua sponte by the Ninth Circuit, prohibited Sea Shepherds from going near ICR vessels, from endangering the safe navigation of these vessels and from attacking them – activities that would occur outside the territorial jurisdiction of the United States).  The piracy label was thus crucial for the Ninth Circuit’s holding – that it could exercise extra-territorial jurisdiction and order compliance with this overseas injunction.  The piracy categorization, however, is controversial.  This post will explore two issues related to the Ninth Circuit’s view of piracy: whether the “private ends” requirement of the United Nations Convention on the Law of the Seas (UNCLOS) definition of piracy encompasses acts by private parties committed for non-pecuniary ends, and what threshold of violence is required for acts to rise to the level of piracy under the same treaty.

Other scholars and I had previously written on the issue of whether the Sea Shepherds’ actions – committed for non-pecuniary ends- constituted piracy under international law.  Eugene Kontorovich and Jon Bellish argued that as long as actions are committed by private parties, such actions would constitute “private ends” for the purposes of the piracy definition under UNCLOS.  According to Kontorovich and Bellish, it does not matter whether acts are committed for political, environmental, or pecuniary ends; as long as they are committed by private parties, they will satisfy the UNCLOS definition of piracy.  Kevin Jon Heller and yours truly had a different view, arguing that only acts committed for truly private ends could satisfy the definition of piracy, and that Sea Shepherds could not be considered pirates.  In this petition for a writ of certiorari, the Sea Shepherds are asking the Supreme Court to review the Ninth Circuit’s decision that Sea Shepherds are pirates because they are committing acts of violence for private ends, regardless of the fact that their goals are completely non-pecuniary.  The Ninth Circuit viewed piracy not as robbery at sea, but as somewhat violent acts committed by private parties at sea.  According to the petition for a writ of certiorari, the Supreme Court should review the Ninth Circuit’s decision because: “this case is not about piracy. It is about whether the federal courts may create new law and enforce it extraterritorially, without authorization by Congress, and in defiance of the mandates of this Court.”  The petitioners/Sea Shepherds are referring here to the infamous Kiobel case, which the United States Supreme Court handed down after the Ninth Circuit’s issuance of the injunction in this case.  A discussion of the Kiobel case is beyond the scope of this post, but it suffices to point out that the Kiobel case limited the ability of United States federal courts to exercise extra-territorial jurisdiction in suits arising under the Alien Tort Statute, which ICR/respondents had relied upon in this case in order to sue Sea Shepherds.  Moreover, Sea Shepherds/petitioners point out that while there is universal agreement that piracy is a fundamental crime under international law, the content of the piracy definition is not well-settled, as the above scholarly disagreement demonstrates.  It is unclear what the “private ends” requirement encompasses, and consequently, the content of the piracy definition/norm is not sufficiently clear to support jurisdiction under the Alien Tort Statute.

Less has been written about the threshold of violence necessary for a finding of piracy under international law.  The Sea Shepherds’ petition for writ of certiorari argues that the piracy norm under international law is not sufficiently clear to support jurisdiction under the Alien Tort Statute, because of disagreement as to what level of violence is necessary to support a finding of piracy.  The petition additionally argues that the Ninth Circuit was wrong in holding that a minimal level of violence would be sufficient for a finding of piracy under UNCLOS, because other courts and authorities have found that piracy, as a serious crime warranting extremely high penalties, requires a finding of overt violence of a sufficient degree, such as robbery, murder, destruction by fire, etc., committed on the high seas.

The petition thus requests the Supreme Court to review the Ninth Circuit’s decision on the following questions of law:

1. Whether the Alien Tort Statute provides jurisdiction for an extraterritorial injunction regulating otherwise legal behavior on the high seas and in waters claimed by another sovereign, based on a norm of customary international law whose meaning is disputed within the international community.
2. Whether a U.S. federal court may use its contempt power to sanction conduct that violates the “spirit,” but not the express terms, of an injunction.

For the purposes of piracy scholarship, the first question is the more interesting one.  It is unclear at this point whether the Supreme Court will accept this petition; if it does, stay tuned for additional posts on these fascinating issues.