On Monday, the Ninth Circuit issued an opinion reversing the lower court and enjoining the Sea Shepherds of Whale Wars fame from coming within 500m of Japanese whaling vessels. In Cetacean v. Sea Shepherds, Judge Kozinski found, in the context of a request for a preliminary injunction in a civil action under the Alien Tort Statute, that the Sea Shepherds were likely committing piracy under UNCLOS. Judge Kozinski also found that the Sea Shepherds were violating the SUA Convention and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).
Just as United States v. Ali presents excellent facts to test the limits of a high seas requirement for facilitators, Cetacean v. Sea Shepherds presents excellent facts to test the limits of the private ends requirement.
Some commentary has been written about the opinion already, and positions range from Kevin Jon Heller’s on Opinion Juris that Judge Kozinski “should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources” to Eugene Kontorovich’s on the Volokh Conspiracy that Judge Kozinski’s reasoning “is obviously correct.”
In reality, the question is closer than either Kevin or Eugene suggest. There are two competing conceptions of what constitutes “private ends,” and both have significant support in the drafting history. Whether the actions of the Sea Shepherds constitute piracy jure gentium depends on which of these interpretations carries the day.