The Volokh Conspiracy

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable to constitute piracy, that there should be an intent of private gain, for if a piratical burning or sinking of a ship or murder of her crew should take place by freebooters on the sea, it would be as genuine piracy as if the primary object were immediate plunder. The act would exhibit a piratical and felonious intent, an intent to despoil the owner of his property.

The necessity for this rule is clear. Motives are often mixed and not transparent. The Irish pirates of prior centuries attacked British ships for gain, but also for politics. Similarly, British pirates against the Spanish in the early 1700s stole – and had political motives. Today’s Somali pirates are said to be motivated in part by foreign overfishing in Somali waters; some pirate bands have manifestly political names (National Volunteer Coast Guard of Somalia). (Ironically, Greenpeace argues that the foreign fishing fleets are the real “pirates,” who have caused the problem in Somalia.) Yet in not one of the dozens of Somali pirate trials around the world has this been even considered as even potentially defeating liability.

Indeed, even saving the whales is not clearly political: it could be selfish, in the sense that some people, like the defendants, are happier knowing there are whales in the world, some people are no. Indeed, redistribution from the rich is itself a political agenda, and such a political motive would make all pirates mere Robin Hoods.

Some may chafe at the notion that Sea Shepherd, which they see as a wonderful group devoted to a noble purpose, should be deemed pirates. But there is a valuable lesson here: one should not mistake the rules of international law with those of morality or decency or environmentalism; sometimes they coincide, sometimes they don’t. If one does not like the result, it means one thinks the international rule is bad. I do not know if this is a good rule in a grander sense, but it is certainly the best one that nations could have actually agreed on.

For thoughts on what this means for ATS litigation overall, see my previous post.

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although piracy was one of the three offenses incorporated into common law, it stood on very different remedial footing than the other two. Civil remedies against pirates were almost exclusively in rem. While damages actions were possible, it is hard to find any evidence of such suits, and they would likely have been far too marginal to command Congress’s solicitude. (pg. 107)

Today’s ruling was just on a preliminary injunction. Hopefully on remand, the defendants will take the opportunity to inquire why anyone would thing Congress would have added a supplemental damages remedy to the standard in rem recovery against pirates – to say nothing of an equitable remedy!