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The Text of the Prize Winning Paper Anti-whaling activism in the Southern Ocean and the international law on piracy: An evaluation of the requirement to act for ‘private ends’ and its applicability to Sea Shepherd Conservation Society ARRON N. HONNIBALL Utrecht University Table of Contents Abbreviations .............................................................................................................. ii Introduction ................................................................................................................. 1 1 The international law definition of piracy ............................................................. 3 1.1 The existence of a requirement to act for ‘private ends’ ..................................... 3 1.2 Differences of opinion on the requirement of ‘for private ends’ under the international law of piracy ......................................................................................... 6 2 Defining ‘private ends’ in international law .......................................................... 9 2.1 The history of piracy codification & the definition of private ends .................. 11 2.1.1 The League of Nations Committee of Experts on International Law Draft Provisions .... 13 2.1.2 The Harvard Law School Draft Convention on Piracy ..................................................... 16 2.1.3 The International Law Commission Draft and The UN Conferences on the Law of the Sea .............................................................................................................................................. 19 2.2 State practice on the definition of ‘private ends’ ............................................... 22 2.2.1 The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation .................................................................................................................................. 24 2.2.2 Judicial precedent on ‘private ends’ & international incidents ......................................... 28 2.3 The justification for the universal jurisdiction of international law piracy, & its relationship to the freedoms of the high seas ........................................................... 34 2.3.1 The policy and rationale behind the piracy exception to exclusive flag state jurisdiction 35 2.3.2 The balance between flag state sovereignty and the collective interests of all states in relation to politically motivated violence between two private vessels on the high seas .......... 39 2.4 Concluding the definition of ‘private ends’ under international piracy law ...... 46 3 The Case of Sea Shepherd and The Institute of Cetacean Research ................. 48 3.1 A brief history of Sea Shepherd and the Japanese research whalers ................. 48 3.2 Previous state practice in relation to Sea Shepherd & environmental activists . 52 3.2.1 The judgements of national courts in relation to Sea Shepherd’s Antarctic campaign .... 52 3.2.2 The 2009 piracy legislation of Japan, and its relationship to Sea Shepherd ..................... 53 3.2.3 The claims of piracy advanced by states in relation to environmental activists ............... 55 3.3 Evaluation of the US Court’s conclusion that Sea Shepherd are pirates acting for ‘private ends’ ...................................................................................................... 59 3.4 Evaluation of the US Court’s decision on the basis ‘political ends’ are taken to be ‘public ends’ – an unworkable test ...................................................................... 63 Conclusion .................................................................................................................. 66 Bibliography .............................................................................................................. 68 Annex I: Treaties and Other International Documents ........................................ 72 Annex II: Judicial Decisions ..................................................................................... 75 Annex III: Other Resources ..................................................................................... 77 Abbreviations ii Abbreviations COLREGs … 1972 Convention on the International Regulation for Preventing Collision at Sea, 1050 UNTS 16 & 1143 UNTS 346. Harvard Draft … Bingham, J., IV Draft Convention on Piracy, with Comment, pp. 739-886 in, Harvard Law School, Research in International Law, 1932. HSC … 1958 Convention on the High Seas, 450 UNTS 11. ICR … The Institute of Cetacean Research. ILC … International Law Commission. ILC Draft Articles … International Law Commission, Articles Concerning the Law of the Sea with Commentaries: 1956, Yearbook of the International Law Commission, 1956, Vol. II. Matsuda Draft … Matsuda, M., & Wang Chung-Hui, M., Report by the Sub-Committee: Committee of Experts for the Progressive Codification of International Law, Questionnaire No. 6, Supplement to the American Journal of International Law, Vol. 20, 1926. Nm … Nautical miles. SUA … Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 27 ILM 668 (1988), 1678 UNTS 221. UNCLOS … 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3. VCLT … 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331. Introduction 1 Introduction “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.” 1 So said Judge Kozinski, as the US Appeals Court overturned the decision of a District Court of Washington2, which had refused to grant a preliminary injunction against the Sea Shepherd Conservation Society3. For the past decade the private environmentalist organisation had been harassing the vessels of the Institute of Cetacean Research (ICR) during its seasonal hunt for whales in the Antarctic Sea using a variety of direct action methods. The relatively short judgement of the court has reopened a number of debates on the definition of piracy under international law, but perhaps the most surprising conclusion of the court was that the requirement of acts ‘committed for private ends’ under international law should be interpreted as acts “not taken on behalf of a state”4. The conclusion is contrary to the common, though not uniformly, held view of academics that ‘private ends’ excludes those pursuing ‘political ends’, such as environmental activists. In order to assess if the US Appeals Court correctly interpreted the international law definition of piracy, we must ask: Under the international law definition of piracy, are Sea Shepherd acting ‘for private ends’ in their campaign against the ICR whaling research programme? This study will approach the definition of piracy from an international law perspective, and thus will only look to municipal piracy law when it demonstrates some use in defining international law piracy. Within the international definition of piracy, the study will only focus on the requirement of acting ‘for private ends’. Thus although the other requirements will be touched upon, the study will not attempt to clarify these requirements or provide a conclusive definition of piracy under international law. Finally the question focuses on politically motivated private actors. Therefore we will only look to the relationship between politically motivated actors and the requirement of acting for private ends. The study will not determine the limits of other actors and the requirement of 1 The Institute of Cetacean Research v. Sea Shepherd Conservation Society, Case No. 12-35266, US Court of Appeals for the Ninth Circuit, 25 February 2013, p. 2. 2 The Institute of Cetacean Research v. Sea Shepherd Conservation Society, Case No. c11-2043RAJ, US District Court for the Western District of Washington, 2012 U.S. Dist. Lexis 36867. 3 The Appeal Court decision has been subsequently upheld, Sea Shepherd Conservation Society v. Institute of Cetacean Research, Application No. 12A790, US Supreme Court, 13 February 2013. 4 The Institute of Cetacean Research v. Sea Shepherd Conservation Society, Case No. 12-35266, US Court of Appeals for the Ninth Circuit, 25 February 2013, p. 4. Introduction 2 ‘private ends’, such as whether insurgents need to be recognised, and whether attacks on their own governmental vessels are excluded by ‘private ends’. To enable us to answer the proposed research question, a number of sub-questions must be answered. Firstly, to gain an understanding of the subject area, the thesis will explore the definition of piracy under international law (Chapter 1). It will be established that the requirement of acts committed for ‘private ends’ is part of the customary and treaty law definition of piracy (Section 1.1), before introducing the conflicting academic interpretations that have resurfaced following the US Court decision (Section 1.2). In order to settle the debate on the interpretation of ‘private ends’, the study will then embark on assessing the different sources available to determine if political ends are excluded from the definition of piracy under international law (Chapter 2). These sources will necessarily include the historical documents that developed the term (Section 2.1), previous state practice in relation to politically motivated actors on the high seas (Section 2.2), and finally the policy and
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