Evolutionary trends in maritime piracy: a possible assessment of eco-activists' conduct.

• Author: Dominelli, Stefano

Abstract

Ever since its 'birth', the conduct of piracy has shown a natural tendency to evolve, to change, and--under a legal perspective--to test and challenge traditional legal frameworks. Currently, one of the main issues is the correct legal qualification of 'eco-protesters', who oppose research or exploitation activities to protect the marine environment. Part of the case law has started to assess protesters' violent conducts on the high seas, showing tendencies of piratical qualification. In the present work, it is argued that--as international law stands nowadays--eco-activists cannot be qualified as pirates. Violent actions on the high seas should rather fall within the scope of application of the SUA Convention. This option would respect eco-activists' human rights without impairing states from the possibility to prosecute violent actions on the high seas. However, this emerging trend draws the attention on possible future developments in the field of maritime piracy.

I Introduction

At first, pirates were considered enemies of the state to be defeated on the battlefield, (1) and even before the adoption of the 1958 Geneva Convention on the High Seas (2), state practice defined the conduct of piracy, from which privateers (3) and rebels (4) were excluded. Before defining piracy, it must be noted that the conduct seems intrinsically and ontologically destined to change over time. (5) As it will be argued below, (6) ever since its 'birth', the conduct of piracy has shown a natural tendency to evolve, to change, and--under a legal perspective--to test and challenge traditional legal frameworks. Consequently, states have re-defined in time the original notion of piracy, and of the states' powers (7) (and limits) (8) to repress such a conduct, which has been classified as a crimina juris gentium.

Even if maritime piracy has been the subject of legal studies at least ever since Hugo Grotius, (9) nowadays there are still tendencies to re-define the elements of crime, to possibly subsume under such category conducts that have little in common with the original image of pirates. Currently, one of the main challenges testing the definition of piracy is the correct legal qualification of 'environment protesters', or 'eco-activists'. As known, eco-activists seek to protect marine environment from activities they assume to be contrary to its preservation. In some circumstances, to pursue their goals, environment protesters have used force on the high seas.

Part of the case law has started to assess protesters' violent conducts, ultimately arguing that these should be subsumed under the definition of piracy. The aim of the present work is i) to outline protesters' modus operandi (Part 2); ii) to reconstruct the elements of the crime of piracy and determine the existence of the private end requirement in protesters' conducts (Part 3); iii) to argue that--as international law stands nowadays--the qualification of protesters as pirates might infringe protesters' human rights (Part 4); iv) to identify a possible legal framework to ensure safety at sea (Part 5), and v) to reflect on possible evolutions in the interpretation of the private end requirement (conclusion).

II Eco-activism and Maritime Piracy: Contemporary Tendencies

In the last years, eco-activism has acquired the interest of the legal scholarship, (10) that has explored whether violent actions on the high seas can be qualified as piratical. However, such an investigation requires an analysis of the eco-activists' modus operandi.

In the first place, the Sea Shepherd Conservation Society (SSCS) and its campaigns devoted to protect the marine environment, also by way of attacking and ramming ships (most often, Japanese and Norwegian ones), can be taken as an example. To save whales, SSCS ships attack vessels allegedly carrying out research and unauthorized exploitation activities, trying to stop or even sinking them, if necessary. The SSCS claims (11) that such actions are not piracy, being a duty of every individual to implement the World Charter for Nature (12) and, in particular, to ensure protection of the eco-system.

Whilst it is true that the international legal personality of individuals has undergone significant changes over time, (13) and save any assessment on the legitimacy of the research activities carried out by some states, (14) it seems that the concept of international legal capacity of individuals promoted by the SSCS does not correspond to the rules of public international law. In the first place, the Charter for Nature is a non-binding instrument. Moreover, should individuals be considered full subjects of international law and directly bound by the Charter, individuals would also have to respect jus cogens rules on the ban on use of force. However, this reconstruction does not correspond to international law as it stands nowadays. (15)

Another case that had a particular echo in the media concerns the Arctic Sunrise, a Dutch-flying vessel seized in September 2013 in the Exclusive Economic Zone (16) by Russian authorities after the crew of the ship, members of Greenpeace, attacked a Russian oil-rig platform. The case led to an arbitral proceeding and an 1TLOS prompt-release order. To both of them the Russian Federation refused to take part. Similarly to SSCS actions, Greenpeace protesters acted to promote a green agenda. In contrast to SSCS actions against alleged whalers, in the Arctic Sunrise case one of the constitutive elements of the crime of piracy was clearly missing, ie the two-ship requirement. In spite of this, at first, Russian authorities indicted the crew of the seized ship for piracy, subsequently changing the charges. (17) Also the Russian President argued that eco-activists--even though not being pirates--are criminals nonetheless. (18)

If the Arctic Sunrise case shows a latent tendency in the qualification of eco-protesters as pirates, US courts, in relation to some SSCS actions, have taken a more explicit position. The US Court of Appeals for the Ninth Circuit, (19) confirmed after revision, (20) has labelled ecoprotesters as pirates. The decision is likely to stay, since the US Supreme Court has recently declined to review the appellate decision.

III Eco-activism and Maritime Piracy: Evolutionary Trends in the Interpretation of the Private End Requirement

The reconstruction of the elements of the crime of piracy is simplified by the existence of treaty-based provisions, and, in particular, by the UN Convention on the Law of the Sea (UNCLOS), (21) whose art 101 offers a definition of piracy. According to UNCLOS, piracy encompasses a) any illegal act 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 of 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.

From the wide-spectrum definition of piracy offered by UNCLOS, which corresponds to customary international law, (22) it seems quite easy to understand the position of those (23) who have emphasised the delicate problem of defining piracy.

Some issues are nowadays solved: firstly, with regard to the subjective scope of application of the provision, insurgents (24) exercising their right to self-determination do not fall under the definition of pirates for the acts committed against military ships of the government they try to overthrow. Secondly, actions of military ships cannot a priori be qualified as piratical, unless the crew has mutinied and taken control over the ship. (25) Thirdly, the rules on piracy do not find application--as a matter of principle--in waters (or airs) under the jurisdiction of a state, as well as in those cases lacking the two-ship requirement, where, e.g., the acts of violence are committed by passengers already on board of the ship. Fourthly, (26) piracy does no longer necessarily require robbery at sea (27) and, moreover, the act of violence does no longer necessarily require the animus furandi, being possible to speak of piracy even in those circumstances in which the reasons driving the action are non-economical in nature, such as revenge. (28)

For example, according to this particular evolution, it is possible to prosecute for piracy those who hijack a ship, without taking anything from it, but who request ransoms to free the ship and the crew. (29) In this sense, the evolution of piracy from mere robbery at sea to any kind of violence' committed on the high seas, and in particular the fact that nowadays pirates do not rob ships, but highjack them and ask for ransoms, (30) has proven to be of crucial importance for those states that did not ratify UNCLOS. States sticking to prior definitions of customary law could have lacked the means to prosecute new' pirates, (31) hence, proving to offer a less effective protection to maritime safety. (32)

On the other hand, there are some elements over which there is no unanimous consensus. This is particularly true with regard to the private end requirement. Part of the legal scholarship excludes that the private end requirement should encompass political acts, whilst, on the contrary, some argue that it should. Those who follow the first interpretation rest upon the assumption that the private end requirement is based on the dichotomy private/political acts, whilst the others that the requirement is based on a private/public act dichotomy. According to this last position, any violent conduct lacking state authorisation would fall within the notion of piracy. Both theories might find comfort in some...