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

March 4, 2013 by 2 Comments

Sea Sheperd Conservation Society Vessel

The United States Court of Appeals for the 9th 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.

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New Facilitators Paper Available on SSRN

March 4, 2013 by Leave a comment

After months of blogging about a high seas requirement for facilitators of piracy, I have posted a law review article on SSRN. Here is the abstract:

Around 2005, maritime piracy began to make a troubling resurgence three quarters of a century after consensus had been reached that the age of piracy had “permanently ended.” It returned, however, in a slightly different form, with pirates relying much more on land-based facilitators than did their historical counterparts. Maritime piracy’s renaissance made pressing the question of whether an inciter or intentional facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This article undertakes a thorough analysis of the text, statutory context, drafting history, and policy impetus behind UNCLOS art. 101 as it relates to universal jurisdiction over facilitators. It finds that the preponderance of the evidence suggests that a high seas requirement in fact exists for facilitators of piracy jure gentium. From there, the article considers the likely implications of such a requirement on modern facilitators of maritime piracy. Through the lens of political economy, the article concludes that universal jurisdiction piracy prosecutions pose something of a commons problem or, alternatively, a public goods problem. Because rational actors operating in a market tend to internalize externalities and under-produce public goods, theory suggests that universal jurisdiction prosecutions should be quite rare. The article goes on to find that state practice shows such prosecutions to be quite rare in fact. The article thus concludes that there is a high seas requirement for inciters and intentional facilitators of piracy jure gentium, but that this requirement will have few practical implications on impunity for facilitators.

The full article can be accessed here. Any substantive criticism is most welcome at jonbellish at gmail dot com. For those interested an another well developed take on the issue, I invite you to have a look at Roger’s piece, which is forthcoming in the Florida Journal of International Law.

In other piracy-related news, the Ashland defendants were convicted in a Norfolk federal district court.

Filed under Worldwide

Round Two for the Ashland Defendants

February 22, 2013 by Leave a comment

The trial of the remaining five pirates accused of mistaking the U.S. Navy amphibious dock landing ship Ashland for a commercial tanker and attacking it in 2010 has restarted. Initially, the trial court dismissed the charges against the defendants under the 1820 case of United States v. Smith — defining piracy as “robbery at sea” — because the defendants never boarded the ship or attempted to steal anything. However, after the 4th Circuit endorsed the UNCLOS definition of piracy in United States v. Dire, the Ashland defendants are back in court.

USS Ashland

USS Ashland entering port in Florida (U.S. Navy photo by Scott Lehr)

Here is what the Norfolk-based Virginian-Pilot had to say about the case:

Prosecutors argue the men were pirates who mistook the amphibious dock landing ship for a commercial vessel.

Defense attorneys, however, claim they were merely lost at sea and trying to get the ship’s attention.

A jury trial for five of the men started Wednesday in U.S. District Court in Norfolk. Over the next week, prosecutors are expected to call to the stand sailors who were on the Virginia Beach-based Ashland at the time of the incident and a Somali man who was on the skiff and is now cooperating with authorities.

Jama Idle Ibrahim, also known as Jaamac Ciidle, pleaded guilty in August 2010 to attempting to plunder a vessel and two related charges. He was sentenced to 30 years in prison but could have his sentence reduced.

Due to the similarities between the case of the USS Ashland and that involving the USS Nicholas (which culminated in the Dire opinion), the defendants’ overall prospects do not look strong.

Filed under Somalia, Worldwide Tagged with , ,

Chinese Drones and Mekong Piracy

February 21, 2013 by 1 Comment

Naw Kham (first from right) and members of his gang hear the verdict of the first trial at the Kunming Intermediate People’s Court in Yunnan Province on November 6, 2012. Photo: CFP

There have been some interesting revelations in the case of Naw Kham, the so-called Mekong Pirate who presided over a transnational criminal network in the Golden Triangle of the Mekong river basin. (prior coverage here). Although Naw Kham was convicted of murder, drug trafficking, kidnapping and hijacking across international borders, this does not constitute piracy under UNCLOS as it did not occur on the high seas. Nonetheless, the case provides a fascinating case study in transnational organized crime and has important analogies to piracy on the high seas. Chinese media have focused on the operation to capture Naw Kham, whereas Western media have focused on the fact that China considered using an unmanned drone to kill him.

First the Chinese government-published Global Times provides details on how Naw Kham avoided capture by the Chinese in the Golden Triangle for so long.

During the search, Naw Kham vanished at least three times just as the Chinese police were closing in. [Taskforce leader] Liu said that this was largely because the Chinese police were limited in what they could do overseas. They had to launch appeals before undertaking operations and cooperate with local police.

But Naw Kham had lived in the Golden Triangle for many years and sometimes locals would aid him.

At the end of 2011, Chinese police located Naw Kham at a village by the Mekong River in Boqiao Province in Laos, the hometown of one of Naw Kham’s mistresses.

Chinese and local police encircled the village, but some local officials and villagers obstructed them. “We hit a stalemate. Police were not allowed to enter the village. Even though the local police head was with us, provincial officials were on the other side,” Liu said.

“The deadlock lasted hours, and it was getting dark. According to local customs, the search would have to be suspended after sunset.”

Liu finally found a senior military officer to help break the deadlock; however, police were only able to search six houses in the village and arrest the mistress and some gang members, seizing guns and cash. At night, Naw Kham crossed into Myanmar with the help of locals.

This highlights the fact that transnational criminality, and piracy in particular, will thrive where three conditions coexist: (1) lack of naval/police enforcement; (2) existence of water-borne commerce of significant value; and (3) poverty – motivating foot-soldiers to take extraordinary risks. In this case, the geography and multiple borders provided cross-jurisdictional cover for Naw Kham. Without strong international cooperation, he would not have been captured.

China’s unmanned Yi Long drone on display at the airshow in Zhuhai

In contrast, the New York Times have seized on the mention in the Global Times article that China had considered using an unarmed drone to kill Naw Kham.

Dennis M. Gormley, an expert on unmanned aircraft at the University of Pittsburgh, said of the reported Chinese deliberations, “Separating fact from fiction here is difficult.” But he added, “Given the gruesome nature of the 2011 killings  [for which Naw Kham was convicted] and the Chinese public’s outcry for action, it’s not at all surprising to imagine China employing an armed drone over Myanmar’s territory.”

Mr. Gormley said the decision not to carry out a drone strike might reflect a lack of confidence in untested Chinese craft, control systems or drone pilots. “I think China’s still not ready for prime time using armed drones, but they surely will be with a few more years of determined practice,” he said. “And they surely will have America’s armed drone practice as a convenient cover for legitimating their own practice.”

Similarly, the United States had considered using unmanned drones against Somali pirates in the Indian Ocean, but that program suffered setbacks and U.S. drones were likely only used to surveil pirate-operations off the coast of Somalia. Ultimately, China decided not to use its new assets. Indeed, capturing Naw Kham with no reported casualties and without the need to launch a military strike in Thailand, Laos, or Myanmar was a much cleaner solution.

Filed under International Rivers Tagged with , , , , ,

Piracy: Declining in the Gulf of Aden, Rising in the Gulf of Guinea

February 16, 2013 by 3 Comments

We are pleased to welcome Milena Sterio as a contributing author to Communis Hostis Omnium. She is an Associate Professor at the Cleveland-Marshall College of Law, where she teaches international law and international criminal law.  She has published numerous articles on the topic of maritime piracy, and she frequently lectures on this topic.  She is a member of the Piracy Working Group, an expert think tank founded by members of the prominent non-governmental organization, the Public International Law and Policy Group.  In her capacity as Piracy Working Group member, she traveled to the Seychelles and to Mauritius, where she consulted with local prosecutors and judges on best strategies toward successful national piracy prosecutions.

A crew member prepares to board a tanker that was hijacked by pirates in Benin on 24 July 2011. Photo: IRIN/Daniel Hayduk

Maritime piracy in the Gulf of Aden and elsewhere in the Indian Ocean appears to be on the decline.  In 2012, only 35 piracy attacks took place, compared to 163 attacks in 2009.  As of January 2013, Somali pirates were holding 4 large ships with an estimated 108 hostages.  In the past, the pirates had held dozens of ships and several hundred hostages at one time.  Some news reports indicate that many Somali pirates seem ready to abandon this once lucrative criminal endeavor.  Last year, Mohamed Abdi Hassan, a high-profile Somali pirate, was quoted as saying “I have given up piracy and succeeded in encouraging more youths to give up piracy.”

This decline in piratical activity off the east cost of the African continent is most likely due to several factors.  First, the Gulf of Aden and other waters of the Indian Ocean have been more heavily patrolled by joint maritime forces of several nations, including European Union and NATO-led fleets.  The presence of naval forces in these waters has deterred some pirates from attempting attacks on merchant ships.  Second, many merchant and passenger cruise ships sailing off the east coast of Africa have been staffed with armed security guards.  Statistics show that no successful pirate attack has ever occurred against a ship protected by armed guards.  Third, Somali pirates seemed to engage in the crime of piracy because it represented a lucrative business opportunity, which posed minimal risk and promised tens of thousands of dollars in financial gains.  Today, piracy is a more risky endeavor, because of the presence of naval fleets in the Indian Ocean as well as armed guards aboard ships.  Thus, Somali pirates may seem willing to abandon this criminal enterprise in order to possibly explore other kinds of opportunities.

Yet, although piracy seems to be declining off the east coast of Africa, the opposite is true for the west coast of the African continent.  Piracy in the Gulf of Guinea, home to major oil-producing states such as Nigeria, Angola, Equatorial Guinea, Gabon and Ghana, has been on the rise.  34 piracy incidents were recorded between January and September 2012, up from thirty in 2011. Togo reported more attacks in 2012 than in the previous five years combined, with three vessels hijacked, two boarded and six attempted attacks.  Piracy has also been on the rise in Benin.  In addition, Nigeria reported over twenty attacks in 2012.  And on February 3, 2013, a French oil tanker was reported missing off the Ivory Coast; according to the International Maritime Bureau, the ship was probably pirated off the shores of Nigeria.

The piracy model in the Gulf of Guinea resembles its counterpart in the Gulf of Aden in terms of the pirates’ modus operandi: in West Africa, pirates sail out to the sea on larger vessels but then launch attacks using smaller skiffs.  In addition, pirates in West Africa seem to be resorting to this crime because of factors similar to those that have existed in Somalia for several decades: insecurity, poverty, as well as a lack of education and employment opportunities.  However, while Somali pirates seemed mostly after collecting ransoms from shipping companies in exchange for the crew and cargo, pirates in West Africa seem more interested in keeping the cargo (mostly oil) of any successful hijacking operations, which they then sell on the black market.  Reports also indicate that pirates in the Gulf of Guinea are more prone to violence, and that they act in more brutal ways toward the captured crewmembers.  And because the Gulf of Guinea is a rich oil-producing region, its strategic importance, and thus the necessity of curbing the rising piracy threat, may be even greater than the piracy menace in the Gulf of Aden had ever been.

Unsurprisingly, like in the case of Somali piracy, the United Nations Security Council has become involved in finding solutions for this developing regional crisis.  On February 29, 2012, the Security Council adopted resolution 2039 calling on the Secretary-General to “support efforts towards mobilising resources following the creation of the regional strategy to assist in building national and regional capacities in close consultation with states and regional and extraregional organizations.”  Furthermore, on October 31, 2012, the United Nations Security Council, in resolution 2018, condemned all acts of maritime piracy and armed robbery at sea in West Africa’s Gulf of Guinea and encouraged states in the region to work together toward a comprehensive response to the menace of piracy.  The Security Council, in this unanimously adopted resolution, encouraged several regional organizations (the Council encouraged the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC)) to jointly develop a strategy against maritime piracy.  Such joint strategy could entail the drafting of more comprehensive domestic laws which would criminalize piracy and armed robbery at sea, as well as the development of an information-sharing regional center.  Moreover, the regional anti-piracy efforts could include the development of domestic laws which would implement international agreements existing in the field of international maritime law.  In addition, ECOWAS, ECCAS and GGC could engage in bilateral or regional maritime patrols in the Gulf of Guinea, in order to ensure the safety of maritime navigation and thwart potential piratical attacks.  Finally, the Security Council urged member states of ECOWAS, ECCAS, and GGC to cooperate with other states, such as states where ships are registered, and states where victims or perpetrators come from, in the prosecution of pirates as well as of piracy facilitators and financiers, in accordance with applicable international law.   The Security Council thus encouraged all states in the international community to assist countries in the region in strengthening anti-piracy efforts in the Gulf of Guinea.

Like the Security Council, the Secretary-General, Ban Ki-moon, has also expressed his intention to focus on the piracy problem in the Gulf of Guinea, by deploying a United Nations assessment mission to the region in order to explore options on how to best address the problem.  According to the Secretary-General, piracy in the Gulf of Guinea could hinder economic development and undermine security in the region.

Within the next few months, the Security Council expects a briefing from Said Djinnit, the Secretary-General’s Special Representative and head of the UN Office for West Africa (UNOWA), on the Secretary-General’s semi-annual report, including an update on the Gulf of Guinea piracy problem.  The international community will have hopefully learned from the Gulf of Aden piracy epidemic, which seems to have been successfully curbed through coordinated international maritime efforts, that anti-piracy efforts in the Gulf of Guinea will similarly require international and regional strategy and a comprehensive anti-piracy plan.

Filed under Somalia, West Africa Tagged with , , , , ,

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