Are environmentalists pirates?

Posted By on Mar 6, 2013 | 1 comment

by Adam Soliman

Illegal, unreported and unregulated (IUU) fishing has been an issue in fisheries management for years. Management on the national level is one issue, but management and enforcement on the high seas is another issue altogether. Whale hunting has been restricted to scientific research purposes only. Japanese organizations and individuals have been accused by conservationists of commercially fishing whales under a guise of scientific research. Sea Shepherd, a conservationist group, has attempted to physically stop the Japanese Whalers. In doing so, Sea Shepherd uses tactics considered (by the Japanese) to be violent. The Japanese plaintiffs went to court in Seattle asking for an injunction against Sea Shepherd. Although the district court refused, the ninth circuit granted the Japanese their injunction.

Before addressing the injunction request, the ninth circuit discussed a piracy claim by the Japanese plaintiffs. Are the Sea Shepherd activists pirates? To be found a pirate, the court must ensure that the legal elements constituting piracy are satisfied.

Under The Law of the Sea Convention, “piracy” requires six specific elements.

The act must:

(i) be illegal;

(ii) be committed by a private ship or aircraft;

(iii) be against another ship or aircraft;

(iv) be in an area outside the jurisdiction of any State;

(v) be for private ends; and

(vi) result in the detention of the craft or violence or depredation directed at the craft, its passengers or crew, or their property.

The two issues the appeal court discussed are whether the environmental activism of Sea Shepherd is considered “private ends” and whether the act was “violent”.

The ninth circuit adopted an understanding that private ends are those not taken on behalf of the state. Further, it adopted the Belgian courts’ decision that environmental activism qualifies as a private end. To that end, the ninth circuit held that:

… “private ends” include those pursued on personal moral or philosophical grounds, such as Sea Shepherd’s professed environmental goals. That the perpetrators believe themselves to be serving the public good does not render their ends public.

In reaching the above conclusion, the ninth circuit refused the narrow construction adopted by the district court, which found that private ends are limited to “financial enrichment”. The ninth circuit adopted a broader definition by looking at the ordinary meaning found in dictionaries, and concluded that “private ends” are those not taken on behalf of a state.

However, laws which interfere with individual rights or freedoms are considered penal and require strict construction; in such cases a court is to adopt a narrow interpretation. On the other hand, a court is to adopt a broader approach when laws confer benefits. If the Sea Shepherd activists are found to be pirates, this would bring criminal charges. Hence, the court should have taken a narrow interpretation; in other words, restricting private to “financial enrichment” should be preferred over a broader meaning. In addition, the court should have attempted to determine the drafter’s purpose, and there seems to be no efforts made by the ninth circuit to do so. Further, it is absurd to conclude that environmentalists are pirates, and courts ought to avoid interpretation leading to absurd consequences. It is one thing to find Sea Shepherd’s tactics illegal, but it’s another thing entirely to find them pirates.

Moreover, in granting an injunction, the ninth circuit had to consider a few elements. These elements are the likelihood of success of the Japanese claim; likelihood of irreparable harm to each party; balancing the equities each party is arguing; and the public interest. Even if all elements are in favor of the party seeking this equitable relief, i.e. the preliminary injunction, the court nevertheless has to consider whether that party (the Japanese) did anything inequitable that would prevent the court from granting them the injunction (otherwise known as the Unclean Hands doctrine).

First, the ninth circuit explained that the governing laws “permit whaling pursuant to scientific permits ….  [the Japanese whaling company] Cetacean’s activities are covered by such permit and thus are consistent with congressional policy as to the marine ecosystem”. In dismissing any claims of harm caused by Cetacean’s alleged illegal activities, the ninth circuit gave no weight to the public interest in maintaining the ecosystem.

Second, the ninth circuit found that Cetacean had not done anything to invoke the Unclean Hands doctrine. The ninth circuit stated that “… [n]or is there anything remotely inequitable in seeking to navigate the sea lanes without interferences from pirates [emphasis added]”. In reaching such conclusions, the ninth circuit only looked at navigation and protection from pirate attacks and did not look at the effect of the harm caused by Cetacean’s alleged action.

Regardless of one’s opinion on the tactics used by Sea Shepherd or the credibility of the Japanese plaintiff’s claim, at the very least a fair consideration of both arguments is what one expects from the justice system.