Supervised by: Athanasios Peftinas, LLB (DUTh), LLM (DUTh), MSc (UOM, AU), MJur (Oxon). Athanasios is a DPhil in Law Candidate at University of Oxford. He graduated 1st in cohort in his bachelor degree and holds three masters. He founded the students’ law review “Ypagogi” as an undergraduate student in 2015, consequently working as editor-in-chief, publisher and director. He participated and acted as a research supervisor in the Research Institute for Public International Law and International Relations “Krateros Ioannou” and as a Coordinator in the Research Institute for Forensic Sciences of Democritus University of Thrace. He is a qualified lawyer in Greece and practised law for two years. His research interests focus on Constitutional Law and Legal Theory.
The paper aims to provide an overview of modern piracy and to whether the international legal framework is capable of sufficiently combating it. Piracy is a phenomena that existed in the ancient times where goods being transported were robbed by the pirates which is called looting piracy but it was dealt with in the nineteenth century. In this paper, we identify two main forms in which piracy has re-emerged. First, a classical one, looting piracy; and secondly, a novel one, environmental piracy. We discuss the reasons that lead to the re-emergence of piracy and find that the existing legal framework faces important challenges in addressing modern piracy.
International Law is defined as ‘a set of rules and principles governing the relations and conduct of sovereign states with each other, as well as with international organisations and individuals’ (Cornell Law School, 2023). The law of the sea is composed of customs, treaties and international agreements by which governments maintain order and peace on the high sea. (NOAA, August 15, 2023). UNCLOS (United Nations Convention for the Law of the Sea) became effective on 16th November 1982 and contains provisions controlling and regulating the claims of nations on the world’s oceans and seas as well as marine sector and maritime activities (KaranC, Marine Insight, 2022).
The UNCLOS Article 92 (1) details the “exclusive jurisdiction” of the flag state over ships on the high seas. No other state can exercise jurisdiction over the ship and the flag state has the authority to legislate, adjudicate, and use force on or against it.
The UNCLOS Article 105 provides the exception of piracy, stating that every state has the authority to seize a pirate ship or aircraft, or such a vessel under the control of pirates. The ship or aircraft must be on the high seas, exclusive economic zone (pursuant to article 58(2)), or in a place outside the jurisdiction of any state. Article 105 is permissive and its exercise depends on national authorities, which may not require legislation.
Under Article 87 of the UNCLOS, the high sea is open for all states, whether coastal or landlocked. Freedom of the high sea outlines freedom of navigation, overflight, the right to lay cables and pipelines, establish infrastructure, and freedom to fishing and research. The right is outlined by this convention and rules of International law (UNCLOS, 2023).
The United Nations Convention on the Law of the Sea (or UNCLOS) defines piracy as any illegal act of violence, detention, or depredation committed for private benefits by the crew or passengers of a private ship or aircraft, directed to other ships/aircrafts (or individuals and property on these automobiles) on the high sea and outside the jurisdiction of any state (UNCLOS, July 2023).
The word “piracy” originates from the Latin form of the word was first used by Cicero in 44 BCE to describe ‘communis hostis omnium’ or ‘common enemies of all people’. The laws of war did not apply to pirates, according to Cicero, as they were common enemies to all. Pirates in the Roman Mediterranean world soon came to be known for maritime depredations.
The passage of water between Malaysia, Singapore, and Indonesia, has had a long and convoluted history and continues to be of much concern to the global maritime community. Piracy in South East Asia (SEA) has been observed since the fourteenth century, when Wang Ta-yuan of the Mongol Empire was the first to document Singapore and its barbaric pirates. Therefore, many scholars today are convinced that ‘piracy may well be the world’s third oldest profession’(Birnie, 1989: 131 after Botting, 1978: 22 and Brown, 1981. Considering this may make one ponder why SEA piracy is so strongly entrenched in SEA’s history and how the hitch developed in the first place throughout the past millennia.
2. Modern Looting Piracy
a. Cases of Modern Piracy
The Case of Somali Piracy
With the longest coastline on mainland Africa, piracy has been rampant in Somalia since the 1990s, posing a significant threat to global trade and safety. Reaching its peak between 2007 and 2012, piracy in Somalia has since plummeted, recording only eight cases between 2016 and 2022.
Among the various causes for the emergence of piracy in Somalia, a primary factor is the country’s history of political instability. Since the overthrow of Major General Mohammed Siad Barre in 1991, civil war has persisted, resulting in a lack of a stable government (Kellerman, 2011). With multiple autonomous political entities, even the UN-supported and internationally recognized Transitional Federal Capital does not have full control over the capital city, Mogadishu (Kellerman, 2011). The resulting instability has driven displaced Somali refugees (numbering 260,000 in Kenya alone) to turn to piracy as a means of survival. As President of Puntland, Abdirahman Mohamud Farole, stated in an interview with the BBC, ‘From the international perspective, piracy might be considered the top issue, but from our standpoint, it is just a small part of the larger Somali problem – a phenomenon triggered by the collapse of the Somali state.’
It is also undeniable that the profitability of piracy in Somalia has significantly contributed to its rapid expansion. The family of any pirate killed receives compensation, and the first pirate on an enemy ship earns double the share of profits (Kellerman, 2011). Somali pirates amassed over $163 million by hijacking foreign ships in the Gulf of Aden (Jablonski, 2015). This immense wealth potential has garnered local support for piracy. Therefore, the two primary causes of Somali piracy, as explained above, are the political situation in Somalia and the financial gain offered by piracy as a livelihood.
As the profitability of piracy became evident, the industry in Somalia experienced exponential growth, reaching its zenith between 2007 and 2012. In the first nine months of 2010, 44% of the 289 piracy incidents and 35 out of 39 ship hijackings were executed by Somali pirates (Topping, 2016). Consequently, the global trade market suffered losses ranging from $1 billion to $16 billion annually, with only a fraction attributed to direct costs like ransom payments (Johnson, 2016). Neighbouring economies also felt the impact, as tourist arrivals and fishing yields declined significantly in East African countries since 2005.
Since 2006, tuna exports dropped by 23.8%, and as vessels relocated to safer fishing grounds, total Western Indian Ocean tuna catches decreased by 26.8% (World Bank Group, 2016). Examining the extensive human toll of Somali piracy, 3,741 crew members from 125 different nationalities have been captured, enduring detention periods as long as 1,178 days. As many as ninety-seven sailors may have lost their lives during attacks, due to mistreatment during detention, or in rescue operations (Ibid). Thus, as demonstrated above, Somali piracy has exacted a heavy toll on the global economy and led to staggering human costs, making it a major concern for the international community.
An exemplary case was the April 2009 hijacking of the Maersk Alabama. The cargo vessel was seized in the Indian Ocean by four Somali pirates, marking the first pirate attack on a ship flying the U.S. flag in approximately two-hundred years (Tikkanen, 2017). Less than three-hundred nautical miles off the Somali coast, Captain Richard Phillips was taken hostage on a lifeboat to be used as leverage (Beckcom, 2017). This led to a three-day standoff between the USS Bainbridge and another U.S. Navy vessel. When negotiations broke down, Navy SEAL snipers took action, killing three pirates and rescuing Captain Phillips. The surviving pirate, Abduwali Muse, was subsequently sentenced to thirty-three years in prison (History.com Editors, 2020).
This case garnered significant international attention and underscored how severely international security was compromised by Somali piracy, emphasising the need for a unified stance against the issue.
Case of Singapore and Malacca Piracy
The excellent geographical features of the Strait of Malacca are undeniable – it serves as the quickest route between the Pacific Ocean (China and Japan) and the Indian Ocean towards Europe and the Americas. As a result, it has always been associated with heavy traffic and trade. Currently, approximately 90,000 ships pass through this narrow passage annually.
Over the centuries, both locals (referred to as Orang Laut, meaning “seaman”) and rulers, including the powerful sultans, seized the opportunity to claim a share of valuable goods such as porcelain, silk, salt, and iron by navigating through this area, leading to their affluence. Unfortunately, this also marked the birth of piracy in Southeast Asia. However, during this period, European empires were experiencing Golden Ages and began imperialising foreign lands, including islands in Southeast Asia. Their motivations included spreading Roman Catholicism, acquiring precious materials, and gaining fame. Consequently, numerous conflicts arose as European powers attempted to undermine local sovereignty, resulting in the downfall of various land-based empires in the region.
The scale of piracy spanning across multiple countries and a vast geographical area highlights a highly organised network of international crime. For instance, Singapore reported seventeen cases of sea robberies between January and March of 2022, more than double the number in the first quarter of 2021 (The Straits Times, 2022). Fortunately, no crew members were harmed in these incidents, as the pirates targeted only tankers and carriers to steal engine parts and welding equipment (Ibid).
The severity of the piracy crisis became particularly evident on March 3, 2023, when a group of unauthorised individuals boarded the Prabhu Shakti bulk carrier while it was underway. The ship’s Master spotted the intruders and promptly sounded the alarm. The perpetrators fled in speedboats upon hearing the alarm. The crew conducted a search and found engine spares missing. Additionally, a white drone was sighted near the stern of the ship, suspected to have been used by the intruders to monitor the ship’s activity. The Coast Guard initiated an investigation shortly after (ICC, 2023).
Similar acts of piracy were uncovered on February 6, 2023, when thieves boarded the Orange Harmony bulk carrier while it was anchored and the crew was occupied with bunkering operations and store replenishment. The thieves made off with the ship’s engine spares. The theft was only discovered after the ship had departed, as footprints were found on the poop deck. Consequently, a search was conducted (ICC, 2023).
Many attribute the sudden increase in piracy incidents to the COVID-19 lockdown. During this period, several Southeast Asian governments implemented strict measures to combat the pandemic. This led many individuals to seek economic gains through criminal activities due to the limited opportunities. Moreover, due to the pandemic-related precautions, law enforcement in the region was hampered, resulting in an escalation of piracy on the high seas and armed robberies in territorial waters.
Furthermore, there is a lack of clarity regarding the actual extent of the situation, and governments in the region often make incorrect statements suggesting that piracy is under control. These intentionally misleading statements have several dimensions. First, piracy might be under control for the shipping industry, but it remains a concern for local communities around the Malacca Strait due to fears of retaliation. Second, while piracy as defined by UNCLOS might be decreasing, other forms of illicit activities remain unchanged due to pirates’ adaptability. Lastly, the decrease in reported piracy incidents might be attributed to the reluctance to record numerical data, as it could hinder maritime trade and erode trust within local communities.
In conclusion, piracy remains a significant threat to the Southeast Asian region, especially considering its long-term strategic impact on the economy. Addressing this issue requires collaborative efforts among countries to enhance maritime protection mechanisms.
b. Evaluating the Effectiveness of the International Legal Framework
International Efforts (THE UNSC & Other Organisations)
To assess the United Nations’ effectiveness in addressing piracy, it’s crucial to consider the frequency and severity of piracy incidents. In the cases under examination, the degree of UN intervention varies significantly between the two nations.
In Somalia, the influence of the UNCLOS and UNSC intervention is highly evident. Since the collapse of Somalia’s government in 1991, piracy has been a global concern. The number of incidents rose from ten in 2006 to a peak of 234 in 2011, before dropping to zero reported incidents since March 2017 (ICC, 2013). The UNSC has implemented various measures, organisations, and operations to combat piracy in Somalia. One such initiative is the European Union Naval Force Operation ATALANTA (Walker, 2022). Established in 2008, Operation ATALANTA supports UNSC resolutions 1814, 1816, 1838, and 1846. Its main goals include protecting World Food Program vessels in the Red Sea, countering piracy in Somalia, and assisting with the prosecution of pirates (Marina Militare, accessed 2023). The operation has contributed to a gradual reduction in pirate-related activities in the areas it covers, such as Africa’s east coast, the Gulf of Aden, and the Indian Ocean (eunavforatalanta, accessed 2023). Furthermore, the UNSC’s recently passed resolution 2608 addresses the situation in Somalia directly. This resolution outlines the measures Somalia is expected to take to effectively combat piracy, including developing a Somali coast guard and addressing social and economic challenges. Additionally, the resolution refers to the continuation of a clause from resolution 2554, allowing member states and regional organisations to take necessary measures against piracy in Somalia, even within its EEZ (UNSC, 2021). While this clause was contested by Somalia in February 2023, it highlights the international community’s commitment to combating piracy.
The efforts of international bodies to prevent piracy in Somalia have notably improved the country’s governance and security. The reduction in piracy-related incidents since 2017 further illustrates this progress.
As of 2023, there have been thirty-eight reported piracy incidents. Notably, the UN has not implemented measures similar to those in Somalia. Nonetheless, two main organisations are focused on piracy prevention in the Somali region. The first is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). Formed in 2004, ReCAAP boasts fourteen member states, including China, Singapore, Japan, and India. The organisation promotes regional cooperation, capacity building, and information sharing as key strategies. The Information Sharing Center (ISC) is a vital aspect, providing real-time data on incident locations and severity within the region (Natarajan, 2023). For example, using ReCAAP’s ISC, the latest incident in the Somali region occurred on August 9, 2023, involving the Cypriot bulk carrier Sophocles Graecia near the Indonesian island of Palau Cula (ReCAAP, accessed 2023). By sharing such information, authorities can identify patterns and respond effectively, fostering international collaboration.
Guidebooks and programs offered by ReCAAP also provide coastal state law enforcement with valuable insights for handling incidents. Through these initiatives, international cooperation is promoted, contributing to a comprehensive approach to piracy prevention.
Piracy and Other Criminal Acts
Piracy has often encouraged transnational criminal offences. Various factors greatly contribute to pirates venturing into other markets, whether socio-economic or geographical factors underpin their market exploitation (Abidah, n.d.). Regarding Somalia, as previously mentioned, the country has been a breeding ground for piracy. However, its proximity to major transportation lanes serves purposes beyond mere looting, making it extremely susceptible to infiltration for further commerce by pirates. Geographically, given the narrow nature of the Gulf of Aden, it is easy for criminals to escape national boundaries into another jurisdiction (Hastings, n.d.).
Furthermore, economic dislocation has bolstered the existence of transnational crime. Poverty, especially unemployment, creates a gateway for a mass influx of youths leaving their economically disregarded communities for piracy and transnational crimes. It is plausible, then, that marginalised Somalis turn to pirate organisations to engage in further criminal activity to earn above a threshold just to survive.
An increasing challenge for Somalia arises from two decades of government instability, resulting in insufficient legislation to effectively deal with criminality at sea. Thus, it may not be the limitations of UNCLOS that hinder the breakup of organised crime but rather the incompetence of Somalia’s present government.
Maritime piracy and the illicit trafficking of narcotics are intrinsically linked. Despite the UN Convention on Organized Crime and the efforts of the UN Office on Drugs and Crime, transitional crimes involving illegal drugs often go unpunished (Bueger, 2020). West Africa, primarily the Gulf of Guinea, has become a cause for concern in recent years, emerging as an international hub for illicit drug trade. In the NDLEA 2015 Annual Report, three clandestine laboratories were uncovered in the south of the country, suggesting they served only as transit points for drug trafficking after being imported from South America (Interpol, 2018). In this context, West African waters have become transit regions for cocaine, heroin, and other illicit substances, with Europe being their final destinations. In comparison to East African Waters, whose primary market is illegal fishing, drug trafficking is far less prevalent in its western counterparts. According to data provided by the International Maritime Bureau for 2015-2017, out of 617 maritime piracy incidents (including relevant transitional crimes), 105 were reported in West Africa, with close to 80% of those incidents occurring in Nigeria alone.
However, a greater issue remains at large: illegal fishing, underway in Somali waters since 1990. According to the UN, industrial trawlers frequently engage in collisions with local fishermen in Somali waters, making it an “easy business” for pirates (Shabley, n.d.). The UN Monitoring Group for Somalia and Eritrea states that the decline in hijacking has led pirates to seek new revenue sources. Consequently, they sell fishing licences to foreign trawlers and even provide onboard security for ships. This emerging trend underscores the limitations of UNCLOS and maritime security measures. A loophole in municipal law arises from Somalia’s expansive territorial waters, deterring seizing states from intervening as often Somalian vessels exploit the concept of “flags of convenience,” registering their vessels under the flag of a country with lax maritime regulations, freeing them from the constraints of international law. This fact, combined with the lucrative illegal fishing trade, creates a near-impossible challenge of coordinating multiple countries into a discussion over the legal consequences of transnational crimes originating from piracy or perpetuated by it (Treves, 2009).
In conclusion, piracy has often encouraged transitional criminal offences. Various factors contribute greatly to pirates transgressing into other markets, whether socio-economic or geographical factors underpin their market exploitation (Abidah, n.d.). Concerning Somalia, as previously mentioned, the country has been a breeding ground for piracy. However, its proximity to major transportation lanes serves purposes beyond solely looting, rendering it highly susceptible to infiltration for further commerce by pirates. Geographically, given the narrow nature of the Gulf of Aden, criminals can easily escape national boundaries and seek refuge in other jurisdictions (Hastings, n.d.).
3. Environmental Piracy
a. Concept of Environmental Piracy
Environmental crises, including climate change, resource depletion, and the endangerment of wildlife, exert a universal impact, prompting environmental activists to target ships engaged in activities detrimental to the natural world. However, the concept of environmental piracy is contentious, with both supporters and detractors.
Before delving into the intricacies of environmental piracy, it’s crucial to grasp the catalysts behind environmental activism. “Environmental activism” refers to the efforts of individuals or groups to protect and support the environment. Activists identify threats ranging from local to global concerns and devise strategies to raise awareness and propose solutions (University of Nevada Reno, accessed 2023).
Environmental activism materialises for three primary reasons. Firstly, activists seek to increase awareness of environmental issues and garner support for collective efforts towards safer and sustainable practices. Secondly, they aim to effect legal changes that better safeguard the environment, either through governmental intervention or by applying pressure. Thirdly, they recognize that significant change emerges when large corporations adopt eco-friendly practices within their operations. Consequently, environmental activists advocate for improved systems and corporate social responsibility (EcoCation, accessed 2023).
Numerous cases highlight the adverse consequences of environmental piracy on involved companies. For instance, the Institute of Cetacean Research was engaged in whaling operations disrupted by environmental activism. This disruption impeded the Institute’s research-driven whaling activities, leading to operational delays and reputational damage (Cullen Manning, 2013). Such disruptions can lead to legal battles, fines, damaged brand loyalty, diminished sales, and hampered business partnerships. Additionally, escalated confrontations between activists and ship crews could result in violence, challenging management given the maritime environment.
However, there are positive outcomes associated with environmental piracy. It can drive government policy changes by pressuring authorities to adopt stringent environmental regulations due to substantial public support. Corporations may shift towards ethical practices to enhance their image and attract environmentally conscious consumers.
Comparing activism on land with that on the high seas reveals distinct differences due to jurisdictional constraints. On land, domestic law prevails, as exemplified by the case of Just Stop Oil, where protests were deemed unacceptable by a district judge (Bass, 2023). Governments might also respond by passing laws to curb disruptive protests, as seen in the Public Order Act 2023, referencing climate change protests (Ibid). In contrast, activism on the high seas lacks the same legal framework, making it inherently problematic. Acts obstructing ships’ objectives occur in a legal vacuum, effectively constituting piracy. A notable example involves Greenpeace activists climbing a Gazprom offshore platform to protest Arctic oil drilling. Although Russia accused them of piracy, charges were dropped due to the absence of the “two-ships requirement.” However, their arrest and the ship’s seizure were legally supported (Teillet & Shariati, 2023).
b. Cases of environmental piracy
Greenpeace v. Shell
The original Greenpeace campaign began with peaceful protests, such as displaying banners; however, these actions escalated to attempts to impede Shell’s ships from reaching their drilling sites. According to Shell, these actions were considered violent and posed ‘real safety concerns’, meeting the criteria for piracy, which led to the filing of a preliminary injunction against Greenpeace protestors (Teillet, 2023). The Ninth Circuit granted the request, citing Greenpeace’s executive director’s confirmation of continued protests involving vandalism and boarding of Shell’s ships (Manning, 2023).
The case originated with Greenpeace’s ship, the Arctic Sunrise, revealing illegal overfishing by a Russian traveller off the coast of Senegal. Subsequently, in September 2013, Russian federal authorities detained two journalists and 28 climate activists aboard the Arctic Sunrise in international waters, drawing global attention. Greenpeace advocated for designating the Arctic as a global refuge and protested against oil exploitation in the Russian Arctic. This aimed to raise awareness about the environmental damage posed by oil corporations like Shell and Gazprom drilling in freezing temperatures without a viable plan to address inevitable oil spills (Harvey, 2014).
The protesters faced immediate danger when Russian police fired bullets as they attempted to hang a protest banner from Gazprom’s oil drilling rig. Agents descended onto the Arctic Sunrise’s deck from helicopters, holding the crew at gunpoint and knife-point, subsequently detaining them without bail, initially on piracy charges and later on hooliganism charges (Zylstra, 2013). This shift in charges from piracy to hooliganism, carrying a seven-year term, was an overreaction to the increased tension and violence escalated by authorities, while Greenpeace’s primary intent was banner promotion. The accusation of piracy was universally condemned by the UN Convention on the Law of the Sea (UNCLOS) as lacking merit under both international and Russian domestic law (Ibid).
To secure the release of the ship and its crew, the Dutch government urgently petitioned the International Tribunal for the Law of the Sea (ITLOS). Despite ITLOS’s jurisdiction only being invoked by governments that ratified UNCLOS, the tribunal made Greenpeace’s submission available to all parties and judges. With a majority of nineteen to two, judges in the case of Kingdom of the Netherlands v. Russian Federation, it was ordered that Russia release the Arctic Sunrise and its crew, allowing them to depart Russian territory and marine areas (Harvey, 2014).
The accusations of piracy and hooliganism were intended to deter opposition against the threat that Arctic oil drilling poses to environmental protection. Greenpeace protesters asserted their right to protection as human rights advocates addressing global environmental concerns and promoting solutions vital for a peaceful and eco-friendly future. Despite being released on bond but barred from returning home, the Russian authorities continued to defy the ITLOS judgement, subjecting Greenpeace protesters to further months of ordeal. Greenpeace lawyers in Russia and the Netherlands realised that the legislation only aided those already incarcerated or in legal proceedings. Subsequently, the Russian exit transit system swiftly enabled the Greenpeace protesters to return to their respective nations (Hagen, 2014).
While Greenpeace’s objectives were politically motivated, UNCLOS classified this case as having “private ends” since it supported an opinion (Nilasari & Steele, 2022). The Belgian Court of Cassation ruled that Greenpeace members interfering with commercial vessels legally disposing of waste into the ocean amounted to piracy. The court deemed the acts as committed for “private ends”, aligning with UNCLOS piracy regulations due to the objective of advancing Greenpeace goals (Caprari, 2009). Although Greenpeace faced prosecution in Belgium for its actions, this is the only instance where an environmental organisation was deemed to be acting for “private ends” in protesting allegedly harmful operations.
Sea Shepherd v. Japanese Whalers Case
Whaling was widespread in Europe during the ninth century, with countries such as Spain, France, and Norway joining in. It quickly gained popularity across many regions globally, prompting more countries to engage in whaling. Since the twelfth century, whaling has played a central role in Japanese culture, where whale meat is considered a delicacy. Additionally, whaling is intertwined with various religious practices.
The Sea Shepherd Conservation Society, a non-profit marine conservation group based in Friday Harbor on San Juan Island, Washington, United States, employs activism by sailing the high seas and disrupting whaling ships through various methods. For instance, they ram into ships, sabotage rudders, and even resort to throwing jars of acid on board to protect ocean creatures from human harm. The founder of Sea Shepherd, Paul Watson, initiated a mission to protect creatures like whales, seals, sea turtles, and dolphins that had become popular targets. This often led to clashes with Japanese whaling ships, creating tensions between the two parties.
The Whaling Community of Japan has been at odds with the Sea Shepherd Society, particularly in the high seas of Antarctica. Sea Shepherd considers Japanese whaling a breach of international law, alleging illegal whaling. Japan, however, contends that its whaling campaigns adhere to the IWC convention, accusing Sea Shepherd of violating international law through its actions, which could be classified as piracy.
A pivotal role in the Sea Shepherd vs. Japanese Whalers case is played by the IWC, or the International Whaling Commission. Its purpose is to promote the protection of whale populations. Currently, the IWC has proposed a compromise peace plan that would legalise some commercial whaling. This plan would also strip whaling nations of the authority to set their own quotas, handing that power to the IWC.
Though killing whales generally violates multiple international treaties, a loophole allows whales to be killed for research purposes. Japanese whalers exploit this by commissioning ships from the Institute of Cetacean Research to kill whales for research, later selling the meat to Japanese fishing businesses. Sea Shepherd attacked the ICR, prompting the latter to file for a preliminary injunction in the United States District Court for the Western District of Washington, D.C. They argued that Sea Shepherd’s actions amount to piracy, violating international laws regarding piracy on the high seas.
In the Sea Shepherd vs. Japanese Whalers case, the organisation initially succeeded in contesting the preliminary injunction, but upon the ICR’s opposition, the case was reconsidered. This time, Sea Shepherd was not as fortunate. The United States Court of Appeals for the Ninth Circuit differed greatly from the district court’s assessment of the claim’s likelihood of success and the public interest the injunction would serve. While evaluating the claim’s likelihood of success, the court debated whether the Sea Shepherd crew could be regarded as pirates under international law.
The Ninth Circuit viewed the district court’s interpretation of “private ends” as lacking, arguing that it should include personal beliefs beyond financial gain. Additionally, the Ninth Circuit questioned the district court’s interpretation of “violence,” contending that it should apply to equipment as well, as stated by UNCLOS. After robust arguments, the Ninth Circuit concluded that Sea Shepherd’s actions indeed fit the definition of pirates and piracy, violating international laws and treaties. The court deemed it likely that ICR would succeed in its request for a preliminary injunction.
The Ninth Circuit also ruled that the safety of passengers aboard attacked ships outweighed the Sea Shepherd Society’s interests and actions. In support of its ruling, the court stated, ‘You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.’
The courts involved in the Sea Shepherd vs. Japanese Whalers case ultimately agreed that protests or environmental activism involving boarding or harming ships or passengers constitute a violation. While acknowledging the right to protest, the courts prioritised passenger safety on these ships, indicating their concern. This case underscores the courts’ reluctance to differentiate between violent and peaceful forms of protest. Following the preliminary injunction, Paul Watson stepped down as the head of the Sea Shepherd Conservation Society.
c. Assessment of case law and legal framework
UNCLOS and Private vs “Public” Ends
The cases of environmental activists described above were treated as piracy cases under international law. According to the definition of piracy in Article 101 of UNCLOS, looking at these cases, it is evident that violence between two ships occurred. Activists resorted to violence using weapons to threaten and harm individuals, or to damage ships and facilities. An example of violence in environmental cases is the Sea Shepherd vs. Japanese Whalers case.
In this instance, activists threw dangerous objects at the ship, endangering both the crew and the ship’s equipment. They also manoeuvred their vessel in a manner that posed a threat to the Japanese ships. However, in cases like John Castle vs. Greenpeace, activists boarded the ship and placed a banner, displaying a different form of violence compared to the Sea Shepherd case. Typically, these cases involve two ships. An example is the Greenpeace vs. Shell case, where the Greenpeace ship, the Sirius, was used to block Shell’s ships. All of these incidents occurred in open seas.
However, the core argument about these cases revolves around a crucial category of the piracy definition: public vs. private ends. Public ends involve governmental or state-run organisations, while private ends are entities owned by individuals. The common understanding of private ends is engaging in actions for financial gain, especially in piracy (this interpretation aligns with the view of many judges and courts, like the Alaska District Court).
When considering public and private ends under international law and piracy, an important aspect to consider is the purpose and intention of the act. Public ends serve political purposes, representing the state’s interests and actions conducted on the state’s behalf. On the other hand, private ends encompass organisations not sanctioned by the state, acting due to personal, moral, or philosophical beliefs. Being recognized as a private end doesn’t necessarily imply financial gain; it could indicate personal beliefs or opinions. These arguments indicate that environmental activists are private organisations, and any unlawful actions will result in consequences for individuals within those organisations. This interpretation aligns with the Ninth Circuit’s view of public and private ends.
Courts have rendered varied judgments in each case as to whether these environmental activists should be recognized as pirates. This recognition hinges primarily on whether they are considered private ends and if the level of violence they engage in qualifies them as pirates. Different courts and judges interpret UNCLOS Article 101 differently, and the piracy definition is not uniform across all courts.
In cases like Sea Shepherd vs. Japanese Whalers and Greenpeace vs. Shell, activists were accused of piracy and sought preliminary injunctions. Initially, district courts denied these requests as they did not recognize the activists as pirates. However, after an appeal by the Institute of Cetacean Research (ICR), the Ninth Circuit was tasked with reviewing the cases. When assessing preliminary injunctions, courts consider safety concerns, public interest, irreparable harm, and likelihood of success. In these instances, the courts also scrutinised whether the activists could be classified as pirates based on their actions.
In analysing the likelihood of success, the court examined whether the Sea Shepherd crew could be considered pirates under international law. The Ninth Circuit disagreed with the district court’s interpretation of private and public ends. The district court defined private ends as acting solely for financial gain. The Ninth Circuit argued that this definition was too narrow and that private ends also encompass individuals’ beliefs and morals. Another point of contention was the definition of “violence.” The district court understood violence as causing harm to people, while the Ninth Circuit contended that violence also includes damaging ship equipment.
Activists’ defence against these accusations revolves around their First Amendment rights, the public location of protests, environmental concerns, and the balance of interests. To counter piracy allegations, they argue that the ship’s flag is approved by the state, their protests are peaceful (meaning they do not harm people), and they emphasise their environmental concerns, which transforms them into a public end rather than a private one.
The 1988 Convention for the Suppression of Unlawful Acts (SUA) against the Safety of Maritime Navigation is another crucial instrument that complements the legal framework against piracy. It is an international treaty that addresses various criminal activities related to maritime navigation. While the SUA Convention primarily focuses on acts endangering the safety of ships and maritime navigation, it also holds relevance for international piracy, particularly by providing a legal framework to address piracy-related offences.
Specifically, Article 3 of the convention stipulates that ‘any person commits an offence if that person unlawfully and intentionally: ‘(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or (b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or (c) destroys a ship or causes damage to a ship or its cargo which is likely to endanger the safe navigation of that ship; or (d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; […]’.
The Convention establishes principles of jurisdiction, allowing states to prosecute individuals involved in piracy-related offences, irrespective of their nationality or the location of the offence. States can exercise jurisdiction based on factors like the ship’s nationality, the flag state, and the location of the offence. Furthermore, the SUA Convention encourages international cooperation in investigating and prosecuting piracy-related offences. States are urged to collaborate by exchanging information, sharing evidence, and providing assistance in legal proceedings.
In cases involving environmental activists such as Greenpeace, we can observe that they forcibly entered the ship, engaged in violent actions against individuals onboard, and caused damage to the ship. This implies that, according to this convention, they committed piracy. Now, this becomes a matter of international security. Article 5 of the convention states that each State Party is required to establish appropriate penalties for the offences outlined in Article 3.
Piracy has re-emerged in modern times in two forms; Looting Piracy and Environmental Piracy. The first form reflects the evolution of the classical form of piracy with its renewed problems, while the latter is a manifestation of a completely novel challenge that stems from a mix of political reasons and private concerns. The threat posed by piracy has a global effect which needs to be curtailed. Organisations such as UNSC are actively working towards this problem but the governments of these regions need to be more keen in order to effectively reduce the issue at hand. Looting piracy not only threatens the security of the high seas but international trade as well. The cases discussed in this paper (i.e. Somali piracy and the Strait of Malacca) clearly show the need for law enforcement, socio-economic development, and international collaboration. On the other hand, though environmental activism can be a powerful tool for positive change, the debate around environmental piracy highlights the interplay between ethical concerns and environmental protection. It is important to maintain a balance between the two which is a great challenge.
A. Zylstra, Piracy or Hooliganism: detention of the Arctic Sunrise (10th edn, 2013).
Amirell Stefan Eklof, Pirates Of Empire: Colonisation and Maritime violence in Southeast Asia (Cambridge University Press 2019) 22.
Bass David ‘Climate Activism – Are Radical Tactics Damaging the Environmental Cause?’ (2023). <https://impakter.com/climate-activism-are-radical-tactics-damaging-the-environmental-cause/> accessed 19 August 2023.
Beckcom B., ‘Captain Phillips and the Truth About What Happened – VB Attorneys’ (VBattorneys, 30 October 2017) <https://www.vbattorneys.com/blog/maersk-alabama-and-somali-pirates-suit#:~:text=In%20April%202009%2C%20the%20Maersk,the%20ship%20into%20a%20lifeboat. > accessed August 19, 2023.
Beckman Robert C., Grundy-War Carl and Forbes Vivian l., Acts of Piracy in the Malacca and Singapore Strait (Maritime Briefing, 8 September 1994).
Caprari A. M., Lovable Pirates – The Legal Implications of the Battle between Environmentalists and Whalers in the Southern Ocean, (42nd edn, 2009).
Chia Osmond, ‘Piracy, sea robberies in the Singapore Strait on the rise: Anti-Piracy group’, (The Straits Times, 5 April, 2022) <https://www.straitstimes.com/singapore/transport/piracy-sea-robberies-in-the-singapore-strait-on-the-rise-anti-piracy-group?close=true > accessed 24 August 2023.
Council of the EU, ‘Operation Atalanta, EUTM Somalia and EUCAP Somalia: mandates extended for two more years’, (23 December 2020).
Cullen Manning, ‘Environmental activism or Piracy?: the Blurry line Between Flying the Jolly roger and Protecting the Environment’, (2013) <https://nsglc.olemiss.edu/SandBar%20PDF/SandBar12.3.pdf> accessed 17 August 2023.
EcoCation, ‘What is Environmental Activism?’ <https://ecocation.org/what-is-environmental-activism/> accessed 16 August 2023.
EU Naval Force Operation Atalanta, ‘About Us’ <https://eunavfor.eu/>accessed 19 August 2023.
Hagen Stehr, Greenpeace again (36th supp, 6th edn, Ausmarine 2014).
Harvey R., The odyssey of the Arctic 30: Richard Harvey on the Greenpeace activists charged with piracy, (66th edn, Socialist Lawyer, 2014).
Hassan Daud, Origin, development, and the evolution of maritime piracy: A historical analysis (International Journal of Law, Crime and Justice, June 2017).
History.com Editors, ‘Somali Pirates Hijack Maersk Alabama Ship’ (History 1 April 2020), <https://www.history.com/this-day-in-history/somali-pirates-hijack-maersk-alabama-ship> accessed 23 August, 2023.
Hoek Andrew, ‘ Sea Shepherd Conservation Society v. Japanese Whalers, the Showdown: Who Is the Real Villain’ (2010) Vol 3 Stanford Journal of Animal law and policy 161.
ICC International Maritime Bureau, ‘Piracy and Armed Robbery Against Ships’ (2023).
IMB, ‘Somali pirate clampdown caused drop in global piracy’(ICC, 2013) <https://www.icc-ccs.org/news/904-somali-pirate-clampdown-caused-drop-in-global-piracy-imb-reveals#:~:text=Somali%20pirate%20clampdown%20caused%20drop%20in%20global%20piracy%2C%20IMB%20reveals,-Created&text=Piracy%20at%20sea%20has%20reached,Bureau%20(IMB)%20revealed%20today.> accessed 19 August 2023.
Karan C., ‘Nautical Law: What Is UNCLOS?’ (Marine Insight, June 18, 2022) <https://www.marineinsight.com/maritime-law/nautical-law-what-is-unclos/ > accessed August 26, 2023.
Kellerman MG, ‘Somali Piracy: Causes and Consequences’ (2011) 3 Inquiries Journal.
Krishnaswamy Natarajan, ‘ReCAAP ISC: Straits of Malacca and Singapore remain an area of concern’ (Safety4Sea, 6 July 2023) <https://safety4sea.com/cm-recaap-isc-straits-of-malacca-and-singapore-remain-an-area-of-concern/#:~:text=The%20ReCAAP%20network%20allows%20law,piracy%20and%20sea%20robbery%20threats> accessed 20 August 2023.
LII, ‘International Law’ (LII / Legal Information Institute) <https://www.law.cornell.edu/wex/international_law > accessed August 26, 2023
LM Johnson, ‘The Consequences of Somali Piracy on International Trade’, 2-4.
LSE Blog Ed. ‘The Price of Piracy in Somalia’ (Africa at LSE, April 20, 2015) <https://blogs.lse.ac.uk/africaatlse/2015/04/20/the-price-of-piracy-in-somalia/ > accessed August 17, 2023.
Manning Cullen, ‘Environmental activism or piracy?’ (12th edn, The SandBar 2023).
Nilasari N. & Steele L., UNCLOS Definition of Piracy: Is it still Relevant for Modern Piracy? (7th supp, 2nd edn, Mulawarman Law Review, 2022).
NOAA, ‘What Is the Law of the Sea?’ (15 August, 2023) <https://oceanservice.noaa.gov/facts/lawofsea.html > accessed August 26, 2023
Rahman Muhammad F., ‘The Persistence of Piracy and Armed Robbery against Ships in the Straits of Malacca and Singapore’ (Modern Diplomacy, July 19 2021) < https://moderndiplomacy.eu/2021/07/19/the-persistence-of-piracy-and-armed-robbery-against-ships-in-the-straits-of-malacca-and-singapore/ > accessed 20 August 2023.
ReCAAP, About ReCAAP Information Sharing Centre, <https://www.recaap.org/about_ReCAAP-ISC> accessed 22 August 2023.
Teillet Laurence, Shariati Ali Ahmad, ‘The return of ‘environmental pirates’? Greenpeace v. Shell on the Atlantic Ocean’ (Nottingham Trent University, 3 February 2023) <https://www.ntu.ac.uk/about-us/news/news-articles/2023/02/expert-blog-the-return-of-environmental-pirates-greenpeace-v.-shell-on-the-atlantic-ocean> accessed 19th August 2023.
Tikkanen A, ‘Maersk Alabama Hijacking’( Encyclopedia Britannica, June 26, 2017) <https://www.britannica.com/event/Maersk-Alabama-hijacking> accessed August 19, 2023.
United Nations Division for Ocean Affairs and the Law of the Sea, ‘Threats to Maritime Security and Responses Thereto: A Focus on Armed Robbery against Ships at Sea in the Straits of Malacca and Singapore Indonesian Experience’ (New York, June 2008).
United Nations Security Council, ‘The situation in Somalia’, (2021) 2608.
University of Nevada, ‘What Is Environmental Activism and Why Does It Matter?’ <https://onlinedegrees.unr.edu/blog/environmental-activism/> accessed 16 August 2023.
Walker T., ‘Is Somali piracy finally under control?’ , (2022) <https://issafrica.org/iss-today/is-somali-piracy-finally-under-control> accessed 19 August 2023.
World Bank Group, ‘Ending Somali Piracy Will Need On-Shore Solutions and International Support to Rebuild Somalia’(August 30, 2016) <https://www.worldbank.org/en/news/press-release/2013/04/11/ending-somali-piracy-will-need-on-shore-solutions-and-international-support-to-rebuild-somalia#:~:text=In%20one%20of%20the%20most,billion%20a%20year%20in%20increased> accessed August 17, 2023.
Zhang LM., ‘Less piracy, armed robbery in Asia waters but “vigilance still key”’, (The Straits Times, 17 Jan 2019) <https://www.straitstimes.com/singapore/less-piracy-armed-robbery-in-asia-waters-but-vigilance-still-key> accessed 19 August 2023.