Public Interest

Are You Really A Pirate If You’re Trying To Save The Whales?

The Ninth Circuit believes that anti-whaling activity is piracy. Might the Supreme Court disagree?

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Is attacking ships really piracy if its purpose isn’t plunder, but instead it’s to save the whales?

Let’s start off with a little background. Commercial whaling has been effectively illegal as a matter of international law since the 1980s. In 1982, the International Whaling Commission (IWC) — the regulatory body established by treaty to oversee whaling — issued a moratorium on all commercial whaling. Since then, the moratorium has never been lifted. So, no whaling allowed. But the moratorium also has a miles-wide loophole: the treaty that established the IWC also allows signatory governments to issue permits for whalers “to kill, take and treat whales for purposes of scientific research.”

Historically, several governments have taken advantage of this loophole — primarily Iceland, Norway, and Japan. In recent years, that list has dwindled to only Japan, whose annual whale-killing permits generally number in the hundreds. And one beneficiary of these Japanese whale-killing permits is the Institute of Cetacean Research, or ICR. ICR kills whales, conducts its research, and then sells (or tries to sell) whale meat.

Enter Sea Shepherd. Sea Shepherd is “a loosely organized conservation movement” made up of affiliate organizations in countries throughout the world. Among its other work, Sea Shepherd undertakes “campaigns aimed at impeding ICR’s killing of whales.” One member of the “loosely organized” Sea Shepherd consortium is the Sea Shepherd Conservation Society, an Oregon nonprofit. In its own words, here’s what the Sea Shepherd Conservation Society does:

Sea Shepherd [has] used various tactics over the years, including throwing bottles of a foul-smelling but benign substance called butyric acid on the decks of ICR’s ships, towing lines across the bows of ICR’s ships in an attempt to entangle their propellers and slow them, and piloting its vessels near the ICR ships to impede whaling, in a way that rendered collision likely.

Naturally, ICR doesn’t like these tactics. So ICR sued.

In December 2011, ICR filed a complaint against the Sea Shepherd Conservation Society in the United States District Court for the Western District of Washington, claiming piracy-related violations of international law and citing the Alien Tort Statute (ATS) as the basis for federal-court jurisdiction. ICR pressed for a preliminary injunction barring the Sea Shepherd Conservation Society from interfering with its ongoing whaling activities.

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The district court denied ICR’s request, mainly on the ground that ICR was unlikely to succeed on the merits of its piracy-based ATS claims. The court then went on to dismiss the case.

So ICR appealed to the Ninth Circuit, which first imposed ICR’s requested preliminary injunction (already a bad sign for Sea Shepherd) and then, in a characteristically colorful opinion by Judge Kozinski (an opinion that Above the Law covered at the time), issued a total victory to ICR. The court reversed the district court’s dismissal order, kept its own preliminary injunction in place, and effectively disqualified the original district judge in any remand proceedings.

Later, because of the Sea Shepherd Conservation Society’s continuing collaboration with its international partners (note that the nature of this collaboration is hotly disputed), the same panel of the Ninth Circuit found that the Society had violated the court’s injunction, ordered an award of fees and costs to ICR, and remanded to the district court to determine appropriate additional sanctions.

Now the Sea Shepherd Conservation Society is seeking Supreme Court review, arguing that the federal courts lack ATS jurisdiction due to a lack of clarity in what exactly constitutes piracy under international law — and a key question is whether Sea Shepherd’s actions serve the public interest, private ends, or, a seeming paradox, both.

The way this question arises is not too complicated. In its 2013 decision in Kiobel v. Royal Dutch Petroleum, the Supreme Court reaffirmed the rule that the only claims that may be brought under the ATS are those based on international-law norms of “definite content and acceptance among civilized nations.” The Court urged that lower courts take caution in deciding what kinds of claims may be brought under the ATS, given the potential foreign-policy implications of ATS actions. The Court also, however, noted that “piracy” was one of the original core claims that may be asserted under the ATS, going so far as to note that “pirates may well be a category unto themselves.”

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The Court did not, however, say what exactly piracy is. Therein lies the lower courts’ confusion in the Sea Shepherd case:  Given that Sea Shepherd’s actions don’t clearly fall within the traditional definition of piracy, should the courts exercise caution and avoid wading into international whaling disputes? (And make no mistake, these are international disputes — the International Court of Justice determined in 2014 that one of Japan’s whaling programs violated international law.) Or should the courts take comfort in the fact that piracy — whatever it is exactly — is just the sort of thing the ATS was enacted to address?

By Sea Shepherd’s characterization, at least, condemnation of piracy may well be an international-law norm, but there’s no clearly defined common definition of piracy. Thus the term “piracy” is not of “definite content and acceptance among civilized nations.”

According to Sea Shepherd, for a long time the definition of piracy was very simple: “robbery at sea.” Modern developments in international law, however, have muddied the definition a bit. Now piracy includes “acts of violence… committed for private ends” at sea. That still sounds pretty much like robbery at sea, but it has a little more wiggle room — what is violence, exactly, and what constitutes private ends? Well, on the latter point, Sea Shepherd says that regardless of the precise bounds of the term “private ends,” the organization’s public-interest mission — whale conservation — is inherently not “private.”

The district court had agreed with Sea Shepherd, more or less: in assessing whether Sea Shepherd engaged in its conduct for “private ends,” the court noted that “Sea Shepherd is uninterested in financial gain; it seeks to save the lives of whales in the Southern Ocean.” The Ninth Circuit, however, disagreed emphatically, concluding that within “the rich history of piracy law,” there’s a simple definition of “acts taken for private ends” — they are “those not taken on behalf of a state.”

The Sea Shepherd case stands a better-than-average chance of being taken up by the Supreme Court given the Court’s recent interest in reining in the ATS. If so, the Court may very well address the question of whether attacking ships is indeed piracy if its purpose isn’t plunder, but instead the saving of whales. And in the end, it may be that Sea Shepherd’s public-interest mission saves it from legal sanctions.

Earlier: Avast Ye Maties! Kozinski Benchslap Ho!

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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