Protesters or Pirates?

Posted in: International Law

For eight years, a battle has raged in the Southern Ocean. Japanese whaling companies, under the guise of scientific research, hunt whales and can their meat for sale. Sea Shepherd, a direct action advocacy group, chases their boats and hurls stink bombs, slippery powder, and ropes at the whaling boats to foul the meat and discourage the hunting. The drama plays out on Animal Planet’s TV show Whale Wars. The parties brought their fight to federal court in the United States, with some interesting results.

The Practice of Whaling

The practice of whaling in international waters is governed by treaty. The International Convention for the Regulation of Whaling provides the backbone of regulations. “The preamble to the Convention states that its intention is to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” It is signed by  88 nations, including the United States and Japan. The Convention establishes the International Whaling Commission, a quasi-regulatory body that works to “keep under review and revise as necessary the measures laid down in the Schedule to the Convention which govern the conduct of whaling throughout the world.”

The IWC has placed a moratorium on commercial whaling. However, Article VIII of the Convention provides an exception that allows member governments to issue permits for the harvest of whales for scientific research. For 20 years, Japan has issued such permits to its whalers, including the whalers in the instant controversy, the Institute for Cetacean Research.

The whaling takes place in Antarctica, which is a jurisdictional hodgepodge. Many nations claim jurisdiction over portions of the area, including the UK, France, New Zealand, Norway, Australia, Chile, and Argentina. These territorial boundaries are recognized only among claimant countries. Australia’s purported territory is the largest, extending from latitude 60 degrees South to 45 and 160 degrees East. Within that territory, the Australian government established the Australian Whale Sanctuary, where any form of whale killing is banned. Japan, not a claimant to the Antarctic Circle, does not recognize Australia’s claim to this territory, nor its rules governing the area.

In 2008, an Australian court issued an injunction against Japanese whalers hunting in the AWS. Australia is seeking similar relief through the International Court of Justice.

The District Court Order

In March 2012, the Institute for Cetacean Research filed for a preliminary injunction against Sea Shepherd Conservation Society. The whalers sought to enjoin Sea Shepherd from harassing their boats in the Southern Ocean. The whalers asserted four claims, but the court found only two to be viable: the right to freedom of navigation at sea, and the right to be free from piracy.

The whalers invoked the Alien Tort Statute (ATS) to get subject matter jurisdiction in the United States District Court. The ATS, codified at 28 U.S.C. § 1350, grants district courts original jurisdiction over any civil action by an alien for tort only. The tort must be committed in violation of the law of nations or a treaty of the United States. The court, citing the U.S. Supreme Court decision Sosa v. Alvarez-Machain and the Ninth Circuit’s decision in Hilao v. Marcos, found that the violations of international law must be of a norm that is “specific, universal, and obligatory.”

According to the order, “No court has ever considered an ATS claim based on international norms against piracy or interference with marine navigation.” This was an issue of first impression.

In order to succeed on a motion for preliminary injunction, the plaintiffs must prove four elements:  (1) they are likely to succeed on the merits of their claim, (2) they are likely to suffer irreparable harm if the injunction is not granted (3) the balance of hardships weighs in the plaintiff’s favor, and (4) an injunction is in the public interest.

Likelihood of Success on the Merits

The court looked to the laws governing international waters to determine whether a violation of obligatory international law occurred in this case. The laws governing navigation in international waters are treaties. They include the United Nations Convention on the Law of the High Seas (UNCLOS), the Convention on the High Seas, Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), and the International Maritime Organization’s International Regulations for Preventing Collisions at Sea (COLREGS).  The court found that “each of these treaties is evidence of the mutual and nearly universal interest of the nations of the world in regulating conduct on the open seas.” In order to succeed in an ATS claim, however, the plaintiff must prove that the defendant’s conduct violated a specific norm.


The court looked to the UNCLOS to determine the meaning of “piracy” on the modern high seas. UNCLOS defines piracy as “any illegal acts of violence or detention . . . committed for private ends against” against a ship on the high seas or persons or property aboard it. The court used two prior federal court decisions, United States v. Said and United States v. Hasan, both from the U.S. District Court for the Eastern District of Virginia, dealing with criminal piracy charges to determine the meaning of “private ends” and “violence,” but found that the issue was still unsettled.

The court found that the prototypical “private end” that motivates a pirate is “financial gain,” and that Sea Shepherd was uninterested in such profit, and sought only to save the whales. They further found that the whalers did not prove that Sea Shepherd’s tactics amounted to “violence,” within the meaning of UNCLOS, and that “it is not apparent that the nations of the world would agree that tactics that resemble malicious mischief amount to piratical violence.” Thus, the whalers were unlikely to succeed in proving that Sea Shepherd committed acts of piracy.

Freedom of Navigation

The court looked to the SUA and the COLREGS to determine whether the whalers may succeed on the merits in a tort action for interfering with their freedom of navigation on the high seas. The SUA prohibits “unlawful and intentional acts that endanger the safe navigation of a ship.” Only one of Sea Shepherd’s tactics violated the SUA—the use of “ropes to the propellers of the whaling ships.” However, the evidence did not support the conclusion that the ropes caused any actual damage, or that any ship was actually disabled by these tactics.  The court also found that Sea Shepherd’s tactics of maneuvering their ships near the whaling boats creates a risk of collision, but that the defendant’s boats were simply too small to endanger the navigation of the whaling ships, and thus they not likely to endanger the safe navigation of ICR’s ships under the meaning of the treaty.

By contrast, the COLREGS provide a detailed “rules of the road,” for maritime traffic, and there the court found state specific, obligatory, and universal norms of marine navigation that Sea Shepherd likely violated when it maneuvered its boat near to the whaling ships.

International Comity

In its final consideration of the likelihood of success on the merits, the district court looked to the doctrine of international comity. “[C]ourts have recognized a doctrine of international comity that demands respect for the sovereignty of other nations’ governments.” (36) This doctrine required consideration of the courts of Australia, which previously issued an injunction against whaling in the AWS—an injunction that the Japanese whalers did not recognize or follow.

The court applied an unclean hands defense to the whaler’s request for injunction. It wrote:

Regardless of the whalers’ view of the Australian injunction, the Australian judiciary has imposed it and expects the whalers to adhere to it. . . . This court’s concern is that the whalers ask a United States court to issue an injunction that would help them engage in the very conduct that an Australian court has enjoined. The court will not grant that request.

Thus, while the court found that the whalers may succeed on one claim (interference with safe navigation under COLREGS), international comity prevented it from granting relief to the parties, at least for actions in the Australian Whale Sanctuary.

Remaining Factors

The court’s analysis of the remaining factors required to succeed in the request for injunction is short. It found that irreparable harm was not likely, because such harm has not occurred over the past 8 years that this “war” has gone on, and that there were only a few weeks left of the whaling season. The court found that the balance of the hardship favored the whalers, but that the public interest weighs against an injunction.

In assessing the public interest, the court returned to an analysis of international comity. It held that this is an issue for the world court to decide, and deferred to the International Court of Justice to resolve the matter.  In the same vein, the court found that Sea Shepherd would likely succeed in an unclean hands defense:

In flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court. Now they turn to another nation’s domestic courts in search of an equitable decree that they expect Sea Shepherd to heed. In the whaler’s view, their violation of the Australian injunction should have no consequences, whereas Sea Shepherd’s violation of the injunction they seek should place it in contempt of court.

The Ninth Circuit Reversal

The whalers appealed their loss to the Ninth Circuit Court of Appeal. That court reversed, issued an injunction against Sea Shepherd, and in a rare and puzzling move, took the case away from Judge Jones and reassigned it.

Judge Kozinski authored the appeals court’s opinion, which started with a colorful and forceful indictment of Sea Shepherd and their tactics:

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 hook; 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.


Kozinski, writing for the panel, found that the whalers were likely to succeed on the merits of an ATS claim based on piracy and interference with safe navigation. The court found that the district court’s analyses of “private ends” and “violence” were erroneous. The appellate court’s opinion relies on the “common understanding” of the words, and cites Webster’s New International Dictionary in support. To the Ninth Circuit, “private” is the antonym to “public,” and thus any action taken by a private actor on the high seas serves private ends – financial or otherwise. It also cites a Belgian court, which held that “environmental activism qualifies as a private end.”

Similarly, the word “violence,” should be understood as the common, dictionary definition under the Ninth Circuit’s interpretation. The court saw no reason why violence against inanimate objects (ships, whale meat) should not be considered “violence” under UNCLOS.

Safe Navigation

The Ninth Circuit ruled that it was “clear error” by the district court to find that because no damage has occurred in eight years, that Sea Shepherd’s actions did not “endanger the safe navigation of a ship” under the SUA. The Ninth Circuit, once again citing Webster’s, found that Sea Shepherd need only create dangerous conditions to endanger the whaling ships. It holds that by failing to recognize the attempt to endanger the navigation of ICR’s ships, the district court abused its discretion:

The district court’s conclusion that Cetacean wasn’t likely to succeed on its SUA Convention claims rested on an implausible determination of the facts and an erroneous application of law; it was an abuse of discretion.

Not surprisingly, the court upheld the district court’s finding that the whalers were likely to succeed on the merits of their COLREGS claim for failing to avoid collisions.

Remaining factors

The Ninth Circuit found that there was a likelihood of irreparable harm for plaintiffs absent an injunction. The court held that it was immaterial whether an actual harm had yet occurred; in fact, “the observation that Cetacean hasn’t yet suffered these injuries is beyond the point. . . . Sea Shepherd’s tactics could immobilize Cetacean’s ships in treacherous Antarctic waters, and this is confirmed by common sense.”

The Ninth Circuit agreed with the district court that the balance of the equities favors Cetacean.

It disagreed with the district court on the finding of public interest. It found that while American laws provide protection for whales and other marine life, they also support the IWC, and the whalers are hunting whales pursuant to a properly issued permit under this convention. The court found that American laws also reflect a strong public interest in safe navigation on the high seas. On balance, the court prefers to send a message that it will not tolerate piracy, rather than deference to foreign court rulings.

The Ninth Circuit found that “while there is a public interest in maintaining harmonious international relations, it’s not a factor here. . . . [T]he district court’s deference to Australia’s judgement in that case was an abuse of discretion. “ Further, “Whatever the status of Cetacean’s whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia’s court orders.”


In an unusual move, the Ninth Circuit reassigned the case on remand to a different federal judge. Holding that “the district judge has expressed strong and erroneous views on the merits of this high profile case,” it concluded that reassignment was necessary “to preserve the appearance of justice.” In several different instances in the opinion, the panel found that Judge Jones had abused his discretion.

In the Ninth Circuit, “reassignment is appropriate if personal bias or unusual circumstances are shown.” Courts exercise their authority to reassign cases only in “only in “rare and extraordinary circumstances.” Judge Kozinski cited the 2004 Ninth Circuit decision In re Ellis in support of reassignment. Under Ellis,

[I]n the absence of a showing of personal bias, we look to whether “unusual circumstances” warrant reassignment. This inquiry focuses on three factors: “(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Only one of the first two factors must be present to support reassignment. (citations omitted)

In the present case, the panel did not apply the three-factor test. Instead, it cited “broad discretion to reassign cases on remand when they feel justice or its appearance require it” under United States v. Quach.  In the Quach case, however, the court remanded after the trial judge made several statements indicating he would not comply with the remand orders. There is no evidence of that type of behavior on the part of Judge Jones.

Judge Smith concurred with the result but dissented as to the reassignment. In his analysis, he applied the three-factor test and found it wanting. Smith found that Ninth Circuit’s remand instructions are clear and “leave no room for any district judge to have substantial difficulty to . . . fail to grasp the clarity and firmness of [its] opinion” under the first prong of the test. Under the second prong, “the appearance of justice” does not require reassignment—that is only for the “most egregious cases.” Judge Smith found “absolutely no evidence in this record to suggest that [Judge Jones denied the injunction] for an improper purpose, such as bias or prejudice.” Finally, Judge Smith does not believe that the appearance of justice requires reassignment: “district judges, like circuit judges, occasionally make mistakes. Where, as here, there is no reason to suspect that the district judge will repeat those mistakes on remand, reassignment is inappropriate.”

The discussion about reassignment in this opinion is quite brief. The panel cites their broad discretion, but does not make specific allegations of bias or provide supporting evidence to make this conclusion. This is what makes the decision puzzling.

The finding that Judge Jones expressed “strong and erroneous views on the merits of this case” is baffling, at least on the record. The district court opinion goes out of its way to express that it does not condone Sea Shepherd’s tactics.  Judge Jones writes:

Finally, the court cautions anyone reading this order that the court suggests no approval of Sea Shepherd’s methods or its mission. In particular, the court acknowledges that its finding that injury to the whalers is not likely will provide little comfort to a whaler struck in the head by an errantly launched bottle, burned by a misguided flare, or injured in a collision between ships. . . . The court does not approve of Sea Shepherd’s tactics, it has merely declined to award the extraordinary relief that the whalers requested in this motion.

The issue before the district court was one of first impression. Judge Jones painstakingly outlined each element required for the injunction, and applied case law and treaty language to come to a decision. The opinion itself is 44 pages long—hardly ill considered. It is odd that the Ninth Circuit would chastise Judge Jones for his conclusions, arrived at via case law, treaties, and history, only to substitute Webster’s Dictionary definitions in their place.


This is an interesting case; it is the first time the definition of “pirate” has been extended to include direct action protest. Many of us think of pirates as men with guns raiding the Somali coast, or old-fashioned swashbucklers with chests of gold, but the definition is changing.  This may mean a change of tactic for direct action protesters of all kinds, at least on the high seas.

The fight is not over for Sea Shepherd, however. The Australian government is seeking relief in the ICJ, and that decision is pending now.

Posted in: International Law