Between Sea Shepard v Cetacean and the recent accusations by Russia that Greenpeace protestors are pirates, it appears to be in vogue to accuse environmentalist groups of being pirates due to their activities on the sea. Combined with other measures to push environmental protests to the periphery of what is a part of accepted society leads to an unfortunate precedent. This piece will go over the areas that countries are attempting to widen the piracy test, then will go on to discuss the implications of allowing the definition of piracy to expand in these ways.
The UN Convention on the Law of the Sea (UNCLOS) puts forward a test for determining if an activity is piracy or not. The test is as follows;
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
Recently, this test has been subject to a series of expansions and revisions by different governments and courts around the world. Without belabouring the point too much, we will go over the ways that this test has been expanded further.
Sea Shepard v Cetacean
The expansion apparent in the recent American cases revolved around the expansion of the “for private ends” provision. Where it originally was enacted to imply a for profit motivation, the recent case out of American courts has implied that an interpretation where “for private ends” includes for political purposes the accused pirates are seeking to forward would be valid. This expands the purview of potential cases which could be brought as piracy. Any political purpose which is not covered under another aspect of UNCLOS, for example freeing slaves, could become a piracy action against those engaging in protest or other activities which otherwise meet the piracy test.
A major concern of this is that under the current international law, each nation is able to prosecute pirates in their own way. The net result of this is that what could be considered to be an act of piracy could be drastically different under different nations.
Prior to Russia waiving the charges of piracy, there was considerable concern in their attempts to charge Greenpeace. Not only would it have further supported the Sea Shepard test regarding private ends, it would have substantially widened the “violence” provision of the UNCLOS test. This, of course, would have required a full trip through the Russian legal system, but that may have already been a forgone conclusion had the charges stuck.
The activities Greenpeace was engaged in appear to have been essentially limited to violating the safe distances generally required under UNCLOS, boarding the Russian oil rig, and the protesting activities which took place. These, in general, are not considered to be wholly violent activities. Disregarding the Sea Shepard incident and whether it was violence or not, should the activities of Greenpeace be construed as violence, it could lead to serious implications in regards to protesting activities.
Allowing the test for piracy to be expanded leads to a variety of irregularities under the law. The protesting by Greenpeace, which appears to have culminated in hanging a banner on an oil rig would, had it involved trespass on a piece of property in most nations would not amount to anything similar to a piracy charge. This allows a much more serious punishment to be tied to this type of political activity than would generally be considered reasonable. What is entailed with a charge of piracy is highly different depending upon jurisdiction. Stepping away from the specifics, the general concept here is that many activities which would generally be considered to be minor protests resulting in a nuisance or trespassing charge at the most become an entirely different beast once ships are involved.
A prime example of this is the Greenpeace situation. Though the particulars are debating, let’s presume for a moment that it was merely the two members of Greenpeace trespassing on the oil rig in question and hanging a banner. Should this have happened on land, it would be no question that it would be a relatively minor trespassing claim. Either way, importing piracy charges into this area of the law can become a major concern for chilling environmental protests. While this can be construed as a mere attempt to cast the Russian government in a poor light, it is particularly telling that in the Somali situation the Russian government was against prosecuting those involved given the relatively murky and unresolved aspects of piracy law.
UNCLOS, however, appears to allow for the use of force against pirates under international law. This matches the verbiage generally allowed in other instances similar to military operations. The United Nations Security Council, however, has recently adopted resolutions which limit the seizure of pirates by every state. It is unclear how these are going to continue to develop moving forward, particularly when Russia
A variety of lessons were learned from the piracy crisis which occurred in Somalia. With relative hindsight, we now know that the pirates were largely a result of an evolution of a form of self-help. Fishers were required to learn how to protect their own fishery in an environment where their government refused to do so. In turn, they eventually turned their skills to piracy when they realized that it was a far more economically viable choice for supporting themselves and their communities. These are just the groups which generally can be expected to engage in the type of protesting activities; they exist at the periphery of their societies. As we continue to move into the uncertain future fraught with climate change and unknown effects from pollution, fisheries may continue to face challenges like this. If environmental groups and protestors can be construed as pirates for relatively minor protests, this seems likely to exacerbate the situation of fishers and create more pirates moving forward.
It is difficult to determine what will happen with the law moving forward. Sea Shepard as a case may suggest a loss for environmentalists, regardless of one’s opinion of they actions, but they have resulted in the worst whaling season for Japanese whalers in recent history. Given the effectiveness of protests and the lack of environmental protection which many nations provide, it seems likely that citizen activism will continue. Extending piracy to apply to protestors will result in bizarre legal situations.