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Lloyd's Maritime and Commercial Law Quarterly

THE “PIRATISATION” OF ENVIRONMENTAL ACTIVISM

Lucas VM Bento*

Institute of Cetacean Research v Sea Shepherd

The decision in Cetacean

In Institute of Cetacean Research v Sea Shepherd Conservation Society,1 Japanese whalers brought an action against Sea Shepherd, a Washington-based conservation organisation, under the US Alien Tort Statute and Washington law, alleging a violation of their right to free navigation at sea and piracy. The United States District Court for the Western District of Washington denied the whalers’ request for a preliminary injunction requiring Sea Shepherd's ships and boats to stay at least 800 metres from their vessels, and prohibiting attacks on whaling crew members or its ships, and dismissed its piracy claims.2 The District Court held that the defendants’ conduct did not amount to violent conduct,3 and that the plaintiff presented “no authority” to suggest “an international consensus” on whether saving the lives of whales qualifies as a “private end”4 for purposes of piracy's definition under international law.
The US Court of Appeals for the Ninth Circuit reversed the District Court's decision,5 and held that the District Court's interpretation of “private ends” and “violence” was erroneous.6 In interpreting the District Court's decision to imply that private ends means financial enrichment, the appellate court noted that the meaning of private “is far broader”.7 The “rich history of piracy law”, the court reasoned, “defines acts taken for private ends as those not taken on behalf of a state”.8 Placing considerable weight on a 1986 Belgian decision, 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”.9
Accordingly, the court held that Sea Shepherd's acts fell within the definition


CASE AND COMMENT

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