In late April, six Greenpeace protesters boarded the vessel Meister, which was carrying coal from northern Queensland, Australia to South Korea.
“Right now there is no political solution to this problem because all the major political parties have committed to doubling and trebling our coal exports,” they said.
The Australian Coal Association called the protest “irresponsible and dangerous with activists endangering commercial shipping, the crew and their own people. If there is an accident on the Great Barrier Reef, it’s this reckless behavior that will bring it on.”
It remains to be seen how that Greenpeace campaign will develop, but it follows decisions earlier this year from the U.S. 9th Circuit Court of Appeals on preliminary injunctions granted to companies trying to stop direct actions by environmental protesters (Shell Offshore Inc. v. Greenpeace. 9th Circuit. No. 12–35332, March 12, and Institute of Cetacean Research v. Sea Shepherd Conservation Society. 9th Circuit. No. 12-35266, Feb. 25).
In Shell Offshore, the 9th Circuit upheld a decision by a district court to grant a preliminary injunction ordering Greenpeace from coming too close to Shell vessels exploring for oil and gas off the Alaskan coast.
The 9th Circuit pointed to four different incidents between 2010 and 2012 in which Greenpeace activists boarded vessels or drilling rigs that Shell or another company, Cairn Energy, planned to use in the Arctic. The incidents took place in varied locations: the Gulf of Mexico, off Greenland, in New Zealand, Finland, as well as Swedish and Danish waters.
In the Sea Shepherd case, the 9th Circuit reversed a district court that denied a request by Japan’s Institute of Cetacean Research (ICR) for a preliminary injunction against Sea Shepherd and dismissed piracy claims.
The appeals court granted the injunction and voted 2-1 to remand the case to a different judge, saying the original judge’s “numerous, serious and obvious errors… raise doubts as to whether he will be perceived as impartial.”
Chief Judge Alex Kozinski said ICR “has been hounded on the high seas for years” by Sea Shepherd and its founder, Paul Watson.
“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,” he wrote.
The 9th Circuit noted both the United States and Japan are signatories to the International Convention for the Regulation of Whaling, which “authorizes whale hunting when conducted in compliance with a research permit issued by a signatory.” ICR had a permit from Japan, though Sea Shepherd calls ICR a “government-subsidized front for commercial whaling.”
ICR sued under the Alien Tort Statute and argued Sea Shepherd’s acts amounted to piracy and violated international agreements regulating conduct on the high seas.
The UN’s Convention on the Law of the Sea (UNCLOS) defines 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.”
While the district court construed private ends as limited to those pursued for financial enrichment, the 9th Circuit concluded private ends include those “pursued on personal, moral or philosophical grounds, such as Sea Shepherd’s professed environmental goals.”
“That the perpetrators believe themselves to be serving the public good does not render their ends public,” it said.
The 9th Circuit also found the district court’s interpretation of violence off-base, saying it had cited no precedent when it held that Sea Shepherd’s conduct was not violent because it targeted ships and equipment rather than people.
UNCLOS explicitly prohibits violence against another ship, persons or property. Sea Shepherd’s actions qualified as violent activities that endangered the crew. Further, damaging ICR’s ships “could cause them to sink or become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the crew.”
ICR sought its injunction pursuant to UNCLOS, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).
The district court concluded that since Sea Shepherd had not yet disabled any of Cetacean’s ships, it was unlikely to succeed in the future.
The 9th Circuit said “this was clear error” and overlooked the actual language of SUA, which prohibits endangering safe navigation.
On the likelihood of irreparable harm, it said the district court’s observation that ICR had not yet suffered injuries was beside the point and noted Sea Shepherd even adorns the hulls of its ships with the names and national flags of vessels it has rammed and sunk.
The 9th Circuit said the balance of equities favored the Japanese, and that public interest also favored the injunction.
Public interest inquiry primarily addresses the impact on non-parties in a dispute. Here the public interests at issue were “the health of the marine ecosystem… and the safety of international waterways.”
“Where a valid law speaks to the proper level of deference to a particular public interest, it controls,” the 9th Circuit said. Two U.S. laws defining the public interest in regards to whaling — the Whaling Convention Act and the Marine Mammal Protection Act — both permit whaling pursuant to scientific permits.
ICR’s activities were covered by a permit and “are consistent with congressional policy.”
U.S. laws also “reflect a strong public interest in safe navigation on the high seas,” the 9th Circuit added. Sea Shepherd’s activities violated UNCLOS, SUA and COLREGS and “are at loggerheads with the public interest of the United States and all other seafaring nations.”
The district court also considered the interest in keeping U.S. courts out of the international political controversy surrounding whaling, but the 9th Circuit said “refusing the injunction sends the far more troublesome message that we condone violent vigilantism by U.S. nationals in international waters.”
Crusaders or pirates?
