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.
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.
The broadest reading of a private ends requirement is that any act of violence, detention, or deprivation not done on behalf of a government satisfies the requirement. The Sea Shepherds’ vessels are flagged in Australia, and Australia has declared all its EEZ to be a whale sanctuary, but the Sea Shepherds have no sovereign authority to enforce Australian law, as Judge Kozinski rightly noted. Indeed, the Ninth Circuit explicitly adopted this broad construction in its ruling when it stated that “the rich history of piracy law. . . defines acts taken for private ends as those not taken on behalf of a state.” Or, as Eugene Kontorovich, another proponent of this broad view explains it, “[p]rivate ends are those ends held by private parties.” Under this reading, the Sea Shepherds are in fact pirates.
Yet there is a narrower reading that finds support in the history of piracy’s definition under international law. It is based on the specific intent of the actor and excludes acts perpetrated for a political purpose, “whether [those political acts] are made on behalf of States, or of recognized belligerent organizations, or of unrecognized revolutionary bands.” Under this conceptualization, the Sea Shepherds could well be considered an “unrecognized revolutionary band” working for a political purpose and be excluded from the definition of piracy.
For my part, I am inclined to accept Judge Kozinski’s reasoning, though I agree with Kevin that it could have been better fleshed out in the opinion. For starters, Somali pirates’ initial self-described rationale for their plunder was protecting their fisheries from illegal exploitation and preventing waste dumping around the Somali coast. If protecting natural resources is a valid defense to the violence and depredation committed by the Sea Shepherds, how can we validly dismiss out of hand that same defense if asserted by Somali pirates? Additionally, historical state practice distinguishing pirates and privateers was a purely formalistic one, depending entirely on acting under color of state authority and in line with the formalistic definition preferred by the Ninth Circuit.
Those who favor a narrower reading, however, have a great deal to point to in bolstering their case. Anyone who is interested in the interpretation of piracy’s definition in the modern context should follow this case closely. Its ultimate outcome, though far from certain, is sure to be illustrative.