Marine conservation campaigners as pirates: the consequences of Sea Shepherd.

• Author: Magnuson, Whitney
• Position: 2013 Ninth Circuit Environmental Review

1. INTRODUCTION II. THE WHALERS VERSUS THE CONSERVATIONISTS A. History of the Whaling Dispute 1. International Response to Whaling on the High Seas 2. Confrontations Between the Whalers and Sea Shepherd B. Bases for the Issuance of the Whalers' Preliminary Injunction C. Likelihood of Success on the Merits 1. Piracy Claim 2. Safe Navigation Claim D. Irreparable Harm E. Balance of the Equities F. Public Interest G. Sea Shepherd's Defenses 1. International Comity Defense 2. Unclean Hands Defense H. The Significance of Sea Shepherd III. THE ELUSIVE DEFINITION OF PIRACY A. Piracy in International Law B. Piracy Law in the United States IV. IMPLICATIONS OF MOVING TOWARD A BROADER INTERPRETATION OF PRIVATE ENDS A. Robbery as an Element of International Piracy B. The Political Ends Exception to International Piracy C. A Brief Textual Analysis D. Private and Non-Private Ends E. The Proper Characterization of Marine Conservation Efforts V. CONCLUSION I. INTRODUCTION

   Over the last decade, the Southern Ocean has become the center of confrontation between Japanese whalers and environmentalist protesters. Sea Shepherd Conservation Society (Sea Shepherd) is the most radical of these protest groups and has become notorious for its distinctive direct action campaign. (1) Every whaling season, Sea Shepherd journeys into Antarctic waters and seeks out whaling ships with the hope of disrupting whale hunting activities. Most often, Sea Shepherd employs smoke bombs, liquid-filled projectiles, and prop foulers, in its attempts to ruin whale meat on board the Japanese vessels, slow down and distract the whaling ships, and ultimately minimize the number of whales killed each season and the profits resulting from their deaths. (2)

   While subjective views of Sea Shepherd range from "conservation police force" to "terrorist," (3) most recently, in Institute of Cetacean Research v. Sea Shepherd Conservation Society (Sea Shepherd II), (4) the Ninth Circuit controversially labeled the organization "pirates" under international law. (5) The accuracy of the holding in Sea Shepherd II hinges on the requirement of customary international law that to be piratical, an act must be committed for "private ends." (6) The "private ends" element has been judicially interpreted both narrowly, to denote "financial enrichment," and broadly, to encompass all violent conduct on the high seas committed by nonstate actors. (7) In the context of Sea Shepherd II, the question of whether "private ends" should include "environmental ends" inevitably arises. (8) This Chapter explores the development of the "private ends" element of the international crime of piracy and its application to modern conflicts on the high seas, in which the alleged "end" of the accused group is marine conservation.

   The relevancy of the whale wars controversy will likely increase in the future as it underscores a clash of interests governed by international law: the rights of modern conservationists to protest environmental decimation, and the protection afforded the whale hunting industry. Conservation efforts will presumably continue to intensify, along with competition for the ownership of marine resources. According to the United Nations, eighty-seven percent of the world's fish stock has been exploited or depleted. (9) Oceans are being cleared at twice the rate of forests. (10) These statistics speak to the growing necessity of marine environmentalism.

   Conversely, incidents of traditional piracy have skyrocketed in the last decade, primarily in the waters of Africa and Southeast Asia. (11) The International Chamber of Commerce reports that in 2011, there were 439 incidents of recorded piracy, during which 802 crewmembers were taken hostage, 45 vessels were hijacked, 176 were boarded, 113 were fired upon, and 8 crewmembers were killed. (12) These figures illustrate the need for international cooperation, legal reform, and harsh punishments to effectively deter violence on the high seas.

   This Chapter uses the Sea Shepherd II case to explore the nexus between international piracy and marine conservation efforts. Section II features a comparative analysis of Institute of Cetacean Research v. Sea Shepherd Conservation Society (Sea Shepherd I) (13) and Sea Shepherd II to establish the legal framework and rationales utilized by American courts in addressing this issue. Section III provides the necessary historical context through an evaluation of piracy law development. Section IV analyzes the "private ends" element as it pertains to Sea Shepherd I and II, along with the complex implications of applying piracy law to environmental activists. Through this assessment, it becomes evident that marine activism does not amount to "private ends," and that such a designation amplifies the gap between the original intent of the "private ends" element and its current application.

2. THE WHALERS VERSUS THE CONSERVATIONISTS

   Sea Shepherd I involved ongoing confrontations between Sea Shepherd, an environmentalist group of anti-whaling crusaders, and the Institute of Cetacean Research (the Whalers), a group of Japanese whalers involved in whale hunting under the auspices of scientific research. (14) The opinions issued in Sea Shepherd I and II offer insight into modern U.S. piracy jurisprudence, and represent the recent philosophical collision of marine conservation efforts and international maritime law. (15) Consequently, a summary is provided below, to illustrate the context and framework in which the issue of marine conservation as piracy has been recently perceived.

   In 2011, the Whalers sued Sea Shepherd for injunctive and declaratory relief. (16) If granted, the injunction would have prohibited attacks on the Japanese crewmembers and ships, and would have required Sea Shepherd's vessels to stay at least 800 meters away from those of the Whalers. (17) The U.S. District Court for the Western District of Washington (Washington District Court) rejected the Whalers' request for a preliminary injunction because the Whalers failed to prove that Sea Shepherd was violating international norms under the Alien Tort Statute. (18) The Ninth Circuit reviewed the Washington District Court's denial of the Whalers' request for abuse of discretion and overturned the decision, (19) granting the preliminary injunction after concluding that Sea Shepherd had engaged in acts of piracy. (20)

   1. History of the Whaling Dispute

      The factual and legal background of the whale wars inform the divergent rationales behind the contrary decisions of Sea Shepherd I and Sea Shepherd II. The first part of this Section addresses the history and status of whaling on an international scale. The second part surveys the specific facts concerning the confrontation between the Whalers and Sea Shepherd.

      1. International Response to Whaling on the High Seas

         The International Whaling Commission (IWC) established the nonbinding International Convention for the Regulation of Whaling (Whaling Convention) in 1946, and enacted a ban on commercial whaling. (21) Nonetheless, whaling was authorized for purposes of scientific research and permits were self-issued by member nations. (22) Japan has issued scientific permits since 1987, despite failing to produce empirical scientific studies or data verifying that killing whales is necessary to conduct its research. (23) Further, it is undisputed that whale meat collected on annual hunts is sold for consumption in Japan. (24) The IWC dedicated the Southern Ocean as a whale sanctuary in 1994, (25) but that has not deterred Japanese whalers from hunting there. (26)

         Many governments have verbally condemned the tradition of "scientific whaling," (27) but Australia is the only country to have taken legal action. (28) Australia attempted to resolve the whale wars by creating the Australian Whale Sanctuary (AWS) in 1999. (29) But Australia's jurisdiction over the 200 nautical mile area of the Antarctic is only recognized by a handful of nations. (30) Australian courts have issued various injunctions estopping the Whalers from hunting within the AWS, but the judgments have been routinely ignored. (31) Most recently, Australia raised an action against Japan in the International Court of Justice (ICJ) in response to Japan's flagrant disregard of the IWC's whaling moratorium. (32) Australia alleged that through the continuance of its whale research program (JARPA II), (33) Japan breached its obligations under the IWC, which mandates the preservation of marine life. (34) Australia requested the termination of JARPA II, revocation of authorizations allowing JARPA II to continue its practices, and demanded assurances that if JARPA II remained, or another whaling research program was created, the program would operate in conformity with international law. (35)

         In March 2014 the ICJ found that while JARPA II could be broadly considered a program of "scientific research," as required by the IWC, its design and implementation did not reasonably relate to its stated scientific objectives. (36) First, Japan failed to provide significant evidence concerning the practicability of using non-lethal methods to conduct its desired research. (37) Second, there was little analysis or reasoning given for its selection of species-specific sample sizes. (38) Third, there was consistently a gap between annual target sample sizes and the actual take, which weighed against Japan's claim that sample sizes were selected due to ecosystem and multi-species competition considerations. (39) Other factors undermining the characterization of JARPA II's actions as "for the purposes of scientific research" consisted of a lack of scientifically valuable information resulting from the annual whale hunts, absence of a timeframe for the program, and failure to cooperate with other Antarctic research programs. (40) The court concluded that Japan had violated international law. Japan's current whale hunting permits were revoked, and it was...