Alien tort statute

• Pages: 2-4

2Volume 19, January–March 2013 international law update

© 2013 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

ALIEN TORT STATUTE

I     W

   

   ,

N C   

    

       “

”

e Plainti-Appellants (“Cetacean”) in the

following case are Japanese researchers who hunt

whales based on a permit. Many nations, including

the U.S. and Japan, are parties to the International

Convention for the Regulation of Whaling (December

2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74). e

Convention, article VIII, authorizes whale hunting

when based on a research permit issued by a signatory

nation. Cetacean holds such a permit from Japan.

e Sea Shepherd Conservation Society (“Sea

Shepherd”) has tried its best to make Cetacean

miserable through aggressive “direct action” tactics

that are sometimes called “eco-terrorism.” Sea

Shepherd’s methods include damaging vessels, as

well as throwing acid containers and smoke bombs

onto vessels.

Cetacean sued Sea Shepherd under the Alien Tort

Statute, 28 U.S.C. Section 1350 [cause of action for

“a tort … committed in violation of the law of nations

or a treaty of the United States.”]. Cetacean claims that

Sea Shepherd’s actions constitute piracy and violate

international agreements. e U.S. District Court

for the Western District of Washington denied

Cetacean’s motion for a preliminary injunction and

dismissed the piracy claims.

e U.S. Court of Appeals for the Ninth Circuit

reverses the District Court’s denial of the preliminary

injunction. Also, the Court nds that Cetacean did

state a claim for piracy.

Cetacean’s allegations of piracy meet the

UNCLOS denition. Even environmental activism

can be a “private end”:

“We review the district court’s dismissal of

Cetacean’s piracy claims de novo. Manzarek v.

St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,

1030 (9th Cir. 2008). ‘[e denition of piracy

under the law of nations . . . [is] spelled out in the

UNCLOS, as well as the High Seas Convention,’

which provide almost identical denitions. United

States v. Dire, 680 F.3d 446, 469 (4th Cir. 2012);

see United Nations Convention on the Law of the

Sea (‘UNCLOS’), art. 101, Dec. 10, 1982, 1833

U.N.T.S. 397; Convention on the High Seas, art.

15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S.

82. e UNCLOS denes ‘piracy’ as ‘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 . . . and directed . . . on

the high seas, against another ship . . . or against

persons or property on board such ship.’ UNCLOS

art. 101 …; see also Convention on the High Seas

art. 15.”

“e district court’s analysis turns on an

erroneous interpretation of ‘private ends’ and

‘violence.’ e district court construed ‘private

ends’ as limited to those pursued for ‘nancial

enrichment.’ But the common understanding of

‘private’ is far broader. e term is normally used as

an antonym to ‘public’ (e.g., private attorney general)

and often refers to matters of a personal nature that

are not necessarily connected to nance (e.g., private

property, private entrance, private understanding

and invasion of privacy). See Webster’s New Int’l

Dictionary 1969 (2d. ed. 1939) (dening ‘private’ to

mean ‘[b]elonging to, or concerning, an individual

person, company, or interest’).”

“We give words their ordinary meaning unless

the context requires otherwise. … e context here

is provided by the rich history of piracy law, which

denes acts taken for private ends as those not taken

on behalf of a state. … Belgian courts, perhaps the

only ones to have previously considered the issue,

have held that environmental activism qualies as a

private end. See Cour de Cassation [Cass.] [Court

of Cassation] Castle John v. NV Mabeco, Dec. 19,

1986, 77 I.L.R. 537 (Belg.). is interpretation is

‘entitled to considerable weight.’ Abbott v. Abbott,

130 S. Ct. 1983, 1993 (2010) (internal quotation

marks omitted). We conclude that ‘private ends’

include those pursued on personal, moral or

philosophical grounds, such as Sea Shepherd’s

professed environmental goals. at the perpetrators