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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 * Trial Lawyer, Quinn Emanuel Urquhart & Sullivan LLP; President, Brazilian American Lawyers Association. 1. (2013) 725 F 3d 940 (9th Cir.). 2. Institute of Cetacean Research v Sea Shepherd Conservation Soc 2012 AMC 869 (WD Wash.). 3. Ibid , 891. 4. Ibid , 888. 5. (2013) 725 F 3d 940, 947. 6. Although this Comment does not examine the Ninth Circuit's liberal interpretation of “violence” under United Nations Convention on the Law of the Sea (10 Dec 1982, 1833 UNTS 397) (“UNCLOS”), Art.101, it prefers an interpretation of violence that is adequate in degree, thus excluding the types of threat and petty intimidation perpetrated by Sea Shepherd in this case. See ES Hershey, The Essentials of International Public Law (Macmillan, 1915), 223 (noting that one of the defining marks of piracy is “an overt act of violence adequate in degree . . . For instance, robbery, murder, destruction by fire etc. It would not include such acts as petty larceny or a mere threat.”). 7. (2013) 725 F 3d 940, 943. 8. Ibid , 943–944. 9. Ibid , 944. 10. The parties devoted little space to the issue of private ends in their trial and appellate briefs. See eg Defendants’ Motion to Dismiss, 10 (“Defendants do not engage in acts committed ‘for private ends’. Sea Shepherd has been a non-profit entity for over thirty years, and it engages in activities to preserve marine wildlife, an inherently public purpose.”). CASE AND COMMENT 153

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