Trans-National Groups: Environmental Activists at Sea

Greenpeace photo © Will Rose / Greenpeace

Been keeping an eye on the Greenpeace "yacht" that carried activists who tried to board a Russian Arctic drilling rig. As you may recall, Russia has now charged "piracy".

Some background on the Greenpeace vessel at Maritime Professional here:

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While Greenpeace refers to the Arctic Sunrise as a research icebreaker, it is registered with the Government of the Netherlands as a sea-going motor yacht, thus avoiding certain technicalities. It has berthing space for up to 28 persons. The ship has been used in a number of high-visibility environmental and ecological protests, some endangering navigation.
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Despite the lack of government approval, Arctic Sunrise most recently entered Russian waters of the Barents Sea and protesters attempted to board the oil and gas platform Prirazlomnaya. A Russian Border Guard vessel fired a warning shot over the bow of the Arctic Sunrise after it refused to heave to. The Greenpeace vessel and its personnel are now under detention and federal criminal charges of piracy have been initiated.

As noted before, the UNCLOS definition of piracy is:

''Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).''

So, if the activists were just out to save the planet, how does that fall under the "committed for private ends" part of the definition? Isn't what they were doing a "public good" or at worst, trespassing?

Good question, and one that will have legal scholars arguing. As Maritime Law expert Eugene Kontorovich wrote at The Volokh Conspiracy,

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The case cited by Professor Kontorovich is Institute of Cetacean Research v. Sea Shepherd Conservation Society, in which the Ninth Circuit overruled a U.S. District Court as the Ninth Circuit

"determined that 'private ends' should not be limited to individuals pursuing 'financial enrichment.' *** . . . the Ninth Circuit that 'private ends' includes those pursued on personal, moral or philosophical grounds." (from St.John's University School of Law Admiralty Practicum Summer 2013 edition)

Professor Kontorovich distinguishes the cases because (1) piracy requires an attack on a ship and an oil rig is not a ship and (2) no act of violence was performed by the Greenpeace activists.

Well, it will be up to a Russian court to sort all that out. However, it does point out that trans-national groups, even those allegedly having the best of intentions, may find themselves bumping against international law as well as the laws of sovereign states that they may not have fully comprehended.

Meanwhile, Greenpeace seeks support in setting "Free the Arctic 30". They also link to a number of legal "experts" who support their view here.

Perhaps they ought to be grateful that they didn't get the Russian "assistance" reportedly provided to suspected Somali pirates.

Note to St. John's Law - the link you cite to the Admiralty Practicum in your print publication is broken.