What Russia’s Piracy Charges Against Greenpeace Mean for International Law

Amazingly, Russia has brought criminal piracy charges against the crew of the Greenpeace ship Arctic Sunrise, which it had arrested on the high seas. The piracy charges make a mockery of international law, for reasons I’ve discussed. Moreover, such clearly abusive and politicized piracy charges are quite unprecedented in modern history, as far as I can recall. Indeed, I am quite surprised by the charges; I had thought Russia would consider the arrest and initial detention sufficient harassment. (But I was more on the mark with my comparison to Pussy Riot – apparently supporters of the Dutch-flagged vessel are now calling it the Pussy Sunrise.)

The charges are significant for international law because historically nations have been extremely wary of pre-textual or politicized piracy charges. To be sure, nations often publicly accused their enemies of piracy – the U.S. in the Quasi-War constantly denounced aggressive French privateering as “piracy.” In the Civil War, President Lincoln also called the obviously-unrecognized Confederate privateers as pirates. But in these cases the matter would almost never proceed from propaganda to prosecution.

One of the more recent politicized invocations of piracy was the Santa Maria incident of 1961, when anti-Salazar forces hijacked a Portuguese cruise ship. Lisbon denounced the attackers as pirates and demanded their arrest. But because the attackers had come on board as passengers, it did not satisfy the “two ship” requirement, just like in the present case, and the international community did not support the piracy characterization. (The terrorists ultimately got asylum in Brazil.) The point is that looks a lot more like piracy than this, and even still did not meet the requirements.

An internationalist explanation would suggest that this is because nations understood that piracy charges are heavy medicine. It is one of the very few justifications for arresting vessels on the high seas, and thus its promiscuous invocation could threaten the freedom of navigation, on which the commerce of the world stands.

A realist – and more real – explanation is the fear of retaliation. If the U.S. hung French privateers as “pirates,” Paris would respond in kind. And Moscow is not losing any sleep over the possibility of retaliation in kind that the Netherlands (once a great sea power), or any of the numerous home countries of the crew, including the U.S.

Russia is feeling its revived-superpower oats. MEMO to the U.S. Senate: It is good that Moscow ratified the UNCLOS treaty. Now its violation of customary international law is combined with a violation of treaty law! Two for the price of one.