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Evolutionary Trends in Maritime Piracy: A Possible Assessment of
Eco-Activists' Conduct
STEFANO DOMINELLI*

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
Ieco-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 Seas2 , state practice defined
the conduct of piracy, from which privateers 3 and rebels' were excluded. Before defining
piracy, it must be noted that the conduct seems intrinsically and ontologically destined to
change over time.' As it will be argued below, 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

Post-Doctoral Contract Research Fellow in EU law, University of Genoa (Italy), Department of Law.
Cf Tribunal of Ravenna, Metall-Market 000 v Moormerland Ltd e Vitorio Shipping Company ltd (3 December 2010)
(2012) Il Diritto Marittimo 1188; James Kraska, Contemporary Maritime Piracy:Inter-nationalLaw, Strategy and Di-
plomacy at Sea (ABC-CLIO, 2n ed, 2011) 6 ff.
2 Geneva Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered in force 30 Septem-
ber 1962).
Generally, on the letters of marque, Francesca Graziani, It ContrastoAlla PirateriaMarittimaNel Diritto Internazio-
nale (Editoriale Scientifica, 2010) 33 ff.
4 On rebels and insurgents see Douglas Guilfoyle, 'The Law of Wars and the Fight Against Somali Piracy: Combatants
or Criminals?' (2010) 11 Melbourne Journal ofInternationalLaw 141; Malvina Halberstam, 'Terrorism on the High
Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety' (1988) 82 7he American Journalof
InternationalLaw 269.
5 In this sense, Francesco Munari, La "Nuova" Pirateria e il Diritto Internazionale. Spunti per una Riflessione' (2009)
Rivista di diritto internazionale 325, 328.
6 See Pt 3 herein.
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

original notion of piracy, and of the states' powers7 (and limits)8 to repress such a conduct,
which has been classified as a criminajurisgentium.
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

7 On which see Myres Smith MacDougal and William Thomas Burke, 7he Public Orderof the Oceans: A Contemporary
InternationalLaw of the Sea (New Heaven Press, 1987) 809 ff.
Cf the UN Security Council (SC) resolutions: SC
" r
Res 1814, UN SCOR, 63" sess, 5902 mtg, UN Doc S/RES/1814 (15 May 2008); SC Res 1816, UN SCOR, 63 l
h h
sess, 6026, mtg, UN Doc S/RES/1816 (2 June 2008); SC Res 1838, UN SCOR, 63rl sess, 5987, mtg, UN Doc S/
h
RES/1838 (7October 2008); SC Res 1851, UN SCOR, 63rl sess, 6046, mtg, UN Doc S/RES/1851 (16 December
h
2008); SC Res 1863, UN SCOR, 64 sess, 6068' mtg, UN Doc S/Res/1863(16 January 2009); SC Res 1897, UN
h h h
SCOR, 64, sess, 6226, mtg, UN Doc S/RES/1897 (30 November 2009); SC Res 1918, UN SCOR, 65 sess, 6301"
h h
mtg, UN Doc S/RES/1918 (27April 2010); SC Res 1950, UN SCOR, 65 sess, 6429, mtg, UN Doc S/RES/1950
h h
(23 November 2010); SC Res 1976, UN SCOR, 66 sess, 6512, mtg, UN Doc S/RES/1976 (11 April 2011); SC
h h
Res 2010, UN SCOR, 66, sess, 6626, mtg, UN Doc S/RES/2010 (30 September 2011); SC Res 2015, UN SCOR,
h h h
66 sess, 6635, mtg, UN Doc S/RES/2015 (24 October 2011); SC Res 2020, UN SCOR, 66 sess, 6663rl mtg, UN
h h
Doc S/RES/2020 (22 November 2011) and SC Res 2036, UN SCOR, 67, sess, 6718, mtg, UN Doc S/RES/2036
(22 February 2012). In the European Union, see Council Joint Action 2008/851/CFSP (10 November 2008) on a
European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and
armed robbery offthe Somali coast, OJL 301 ( 12 November 2008), 33, and the Council Decision 2012/174/CFSP
(23 March 2012) amending Joint Action 2008/851/CFSP on a European Union military operation to contribute
to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, OJ L 89 (27
March 2012), 69 (in particular art 1 n 1 and 5 forthe territorial extension of the mission and the extension of the
temporal framework of the action). On the EU's action, see Marta Bo, 'EUCounter-Piracy Operations and the Pro-
tection of Human Rights at Sea' in Maria Elena De Maestri and Stefano Dominelli (eds), PartyAutonomy in European
Private (and)InternationalLaw(Aracne editrice, 2015) 267.
8 Most notably, the respect for human rights. For example, on the compatibility of transfer agreements with the
Convention for the Protection of Human Rights and FundamentalFreedoms, opened for signature 4 November 1950,
CETS No 5 (entered into force 3 September 1953). CfV G K61n, Urteil vom 11 November 2011, Az 25 K 4280/09,
in Hamburger ZeitschrfrfiirSchiffahrtsrecht (2012) 153, and OVG Nordrhein-Westfalen, 18 September 2014 - 4 A
2948/11, in Die Offentliche Verwaltung (2015) 343. In general, on the decision of the VG K61n, see Anna Petrig,
Arrest, Detention and Transfer of Piracy Suspects: A Critical Appraisal of the German Courier Case Decision' in
Gemma Andreone, Giorgia Bevilacqua, Giuseppe Cataldi and Claudia Cinelli (eds), Insecurity at Sea: Piracy and Oth-
er Risks to Navigation (Giannini editore, 2013) 153. On the topic of transfer of pirates, see Ademun Ademun-Odeke,
'Jurisdiction by Agreement Over Foreign Pirates in Domestic Courts: In Re Mohamud Mohamed Dashi & 8 Others'
(2012) 24 University of San Francisco Maritime Law Journal 35; Giorgia Bevilacqua, 'I1Problema Della Re-
pressione del Reato di Pirateria Marittima e il Necessario Bilanciamento tra le Esigenze di Esercizio Effettivo della
Giurisdizione e di Garanzia dei Diritti Individuali' (2012) II Diritto Marittimo 664; James Thuo Gathii, 'Piracy
Prosecution: Kenya's Piracy Prosecutions' (2010) 104 7he American Journalof InternationalLaw 416.
9 On whose works, see Michael Kempe, 'Beyond the Law: The Image of Piracy in the Legal Writings of Hugo Grotius'
in Hans W Blom (ed), Property,Piracy and Punishment:Hugo Grotius on War and Booty in De iure Praedae: Concepts
and Contexts (Brill, 2009) 379 ff.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

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: ContemporaryTendencies

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 claims11 that such
actions are not piracy, being a duty of every individual to implement the World Charter for
Nature12 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

10Among the contributions specifically devoted to such issue, see Barry Hart Dubner, Claudia Pastorius, 'On the Ninth
Circuit's New Definition of Piracy: Japanese Whalers v the Sea Shepherd - Who are the Real "Pirates" (ie Plunder-
ers)?'(2014) 45 JournalofMaritime Law & Commerce 415; Debra Doby, 'Whale Wars: How to End Violence on the
High Seas' (2013) 44 JournalofMaritime Law and Commerce 135; Joseph Elliott Roeschke, 'Eco-Terrorism and
Piracy on the High Seas: Japanese Whaling and the Rights of Private Groups to Enforce International Conservation
Law in Neutral Waters' (2009) 20 7he Villanova Environmental Law Journal 99; Jasper Teulings, 'Peaceful Protests
Against Whaling on the High Seas - A Human Rights-Based Approach' in Clive Symmons (ed), Selected Contem-
porary Issues in the InternationalLaw of the Sea (Martinus Nijhoff Publishers, 2011) 232; Natalie Klein, Maritime
Security and the Law of the Sea (Oxford University Press, 2011) 142; Alana Preston, 'Eco-Terrorism in the Southern
Ocean: A Dangerous Byproduct of the Tangled Web of International Whaling Conventions and Treaties' (2012) 34
Whittier Law Review 117; Andrew Hoek, 'Sea Shepherd Conservation Society v Japanese Whalers, the Showdown:
Who Is the Real Villain?' (2010) 3 Stanford Journal ofAnimal Law and Policy 159; Amanda M Caprari, 'Lovable
Pirates? The Legal Implications of the Battle Between Environmentalists and Whalers in the Southern Ocean' (2010)
42 Connecticut Law Review 1493; Gerry Nagtzaam, 'Gaia's Navy: The Sea Shepherd Conservation Society's Battle
to Stay Afloat and International Law' (2014) 38 William and Mary EnvironmentalLaw and Policy Review 613; An-
thony Moffa, 'Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the
Southern Ocean (2012) 37 7he Yale Journal of InternationalLaw 201; Whitney Magnuson, 'Marine Conservation
Campaigners as Pirates: The Consequences of Sea Shepherd' (2014) 44 EnvironmentalLaw 923; Karim Md Saiful,
'The Rise and Fall of the International Law of Maritime Terrorism: The Ghost of Piracy is Still Hunting!' (2014) 26
New Zealand UniversitiesLaw Review 82.
See <ht: //www.seashepherd. it/who-we-are/laws-and-charters.html>.
12 World Charterfor Nature, GA Res 37/7, UN GAOR, 37,h sess, Supp No 51, 17, UN Doc A/37/51 (28 October
1982), art 21 ff.
1 On the international legal personality of individuals, and its evolutionary trends, see Sergio Maria Carbone, 'I Sogget-
ti e Gli Attori Nella Comunit6 Internazionale' in Sergio Maria Carbone, Riccardo Luzzatto and Alberto Santa Maria
h
(eds), Istituzioni di Diritto Internazionale (Giappichelli, 4 ed, 2011) 3 ff.
14 On which see, in the case law of the International Court of Justice, Whaling in the Antarctic (Australia v Japan,
New Zealand intervening) (Judgments) [2014] <ht.://www._ic-c or ,/docket/files/148/181 6. pd>, where the Inter-
national Court of Justice found that Japan's whaling programme in the Antarctic (JARPA II) was not in accordance
with paragraphs 10(e) and (d), and with paragraph 7 (b) of the Schedule to the Inter-national Conventionfor the Reg-
ulation of Whaling (InternationalConvention for the Regulation of Whaling, opened for signature 2 December 1946,
161 UNTS 72 (entered into force 10 November 1948)). For a first study of the legal framework related to whales, see
Joanna Mossop, 'Marine Mammals in the Antarctic Treaty System' in Erik Molenaar, Alex Oude Elefrink and Donald
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

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 respectjus cogens rules on the ban on use of force. However,
this reconstruction does not correspond to international law as it stands nowadays.1
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 Zone16 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 ITLOS 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 eco-
protesters as pirates. The decision is likely to stay, since the US Supreme Court has recently
declined to review the appellate decision.

Rothwell (eds), 7he Law of the Sea and the Polar Regions: Interactions Between Global and Regional Regimes (Brill,
2013) 267.
15 On which see Riccardo Luzzatto, 'IIDiritto Internazionale Generale e le Sue Fonti' in Sergio Maria Carbone, Ric-
h
cardo Luzzatto and Alberto Santa Maria (eds), Istituzioni di Diritto Internazionale(Giappichelli, 4 ed, 2011) 77 ff.
However, on the possible evolutions of international legal personality, see in the case law of the International Court
of Justice, Reparationfor Injuries suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 17,
[174] 178 ff.
16 For a reconstruction of the facts of the case, see Request of Provisional Measures registered at the ITLOS by the
Netherlands, available on the web page of the Tribunal, at <http://www.itlos.org/fileadmin/itlos/documents/cases/
case no.22/Reqgest provisional measures en withtranslations.1df>. In the legal literature, see Giorgia Bevilacqua,
'Effettivit6i del Diritto Internazionale del Mare e Tutela delle Libert6i Fondamentali Nel Caso "Arctic Sunrise"' (2014)
DirittiUmani e Diritto nternazionale188; IlariaTani, 'II Caso Arctic Sunrise" (2014) Rivista GiuridicaDellAmbiente
253.
17 Cf for a report of the domestic proceedings, <http//www.greenpeace.org/international/en/news/features!From-
peaceful-action-to-dramatic-seizure-a-timeline-of-events-since-the-Arctic-Sunrise-took-action-September-1 8-
CET/>.
is New York Times, Europe Section, <http://www.nytimes.com/2013/09/26/world/europe/seizure-of-a-greenipeace-
vessel -byrussia.htm ? r-l&>.
19 United States Court of Appeals for the Ninth Circuit, Institute of Cetacean Research et al v Sea Shepherd Conservation
Society etal,Appeal from the United States District Court for the Western District of Washington, 25 February 2013.
The decision, as well as further petitions and orders, are available at <http://www.ca9.uscourts.gov/content/view.
hl2?k id 0000000655>.
20 United States Court of Appeals forthe Ninth Circuit, Institute of Cetacean Research et al v Sea Shepherd Conservation
Society et al, Order and Amended Opinion, 24 May 2013. Other than the already quoted literature, see Whitney
Magnuson, 'Marine Conservation Campaigners as Pirates: The Consequences of Sea Shepherd' (2014) 44 Environ-
mental Law 923; Ryan A Keefe, 'Ninth Circuit Issues Preliminary Injunction Recognizing Activist Conservation
Society As Pirates -Institute of Cetacean Research v Sea Shepherd Conservation Society, 708 F 3d 1099 (9th Cir 2013)'
(2013) 36 Suffolk TransnationalLaw Review 461; J DeVeaux Stockton, 'Pirates Who Neither Pillage Nor Plunder?
The Ninth Circuit Is On Board' (2014) 8 FederalCourts Law Review 185; Jonathan Volinski, 'Recent Developments
in Environmental Law' (2013) Tulane EnvironmentalLaw Journal,333.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

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 21 and, moreover, the act of violence does no
longer necessarily require the animusfurandi,being possible to speak of piracy even in those
circumstances in which the reasons driving the action are non-economical in nature, such as

21 United Nation Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered
into force 16 November 1994) (UNCLOS).
22 United States District Court for the Eastern District of Virginia, Norfolk Division United States ofAmerica vMoham-
med Modin Hasan, GabulAbdullahiAli, Abdi Wali Dire,Abdi Mohammed Gurewardher, Abdi Mohammed Umar (29
October 2010).
23 Cf Giorgio Righetti, Trattato di DirittoMarittimo, Vol I (Giuffre, 1987) 462.
24 There are also divergent opinions on whether insurgents must be recognised. Of this idea, see in the case law United
States v 7heAmbrose Light, 25 Fed 408, 412-13 (SDNY 1885), and, in the legal literature, Douglas Guilfoyle, 'Piracy
and Terrorism' in Panos Koutrakos and Achilles Skordas (eds), 7he Law and Practice of Piracy at Sea: European and
InternationalPerspectives (Hart Publishing, 2014) 42. However, noting that in spite of legal writings no unauthorised
insurgent has in the past ever been convicted for piracy, see Hersch Lauterpacht, Recognition in InternationalLaw
(Cambridge University Press, 1947) 304. See also Natalino Ronzitti, 'The Law of the Sea and the Use of Force against
Terrorist Activities' in Natalino Ronzitti (ed), Maritime Terrorismand InternationalLaw (Martinus Nijhoff Publish-
ers, 1990) 3.
25 In this sense, UNCLOS, art 102.
26 In the previous case law, see United States District Court for the Eastern District of Virginia, Norfolk Division 757
F Supp 2D 554 (17 August 2010). In the same terms already the US Supreme Court in United States v Smith, 18 US
5 Weath 153 (1820) 162.
27 Always in the US case law, non directly bound by UNCLOS, United States Court of Appeals for the Fourth Circuit
680 F 3d 374 (23 May 2012), reversing the appealed decision by making reference to the principle in United States
Court of Appeals for the Fourth Circuit 680 F 3d 446 (23 May 2012), according to which robbery at sea does not
constitute anymore a necessary element of the crime of piracy.
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

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, 31hence, proving to
32
offer a less effective protection to maritime safety.
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 traditional elements of the crime
of piracy. The private/political dichotomy theory, excluding that political acts are piratical in
nature, could find comfort in the traditional exclusion of insurgents from the personal scope
of application of the rules on maritime piracy. Regardless of any (unlikely) recognition of
the government they try to overthrow, actions of insurgents against this government are not
piratical if driven by political purposes (being different the question of actions against other
governments, against whom insurgents are not exercising their right to self-determination).
On the other hand, the private/public dichotomy theory could find comfort in the exclusion
of military ships. Insurgents acting for political reasons are not pirates, and, at the same time,
33
military ships are deemed not to be pirates because of a state authorisation for their actions.
These exclusions from the scope of application of the rules on piracy do not seem
conclusive in determining whether the private end requirement should (or should not)
be interpreted as a private/public dichotomy. Whilst agreeing with those who propose the
private/public dichotomy theory,34 and in particular with the idea that the evaluation of the

28 Clearly in this sense, International Maritime Organization, CircularLetter concerningInformation and Guidance on
Elements of InternationalLaw relatingto Piracy (Circular letter No 3180 (17 May 2011) Annex, [13]), < http://www.
un org/depts/los/piracv/circular letter 3180 pdfr>.
29 For references, see Stefano Dominelli, 'I1Pagamento del Riscatto ai Pirati Quale atto di Avaria Comune: Applicabiliti
delle Regole di York e Anversa in Italia e Possibili Sviluppi Nel Sistema Statunitense' (2012) IlDirittoMarittimo1189.
30 As noted by Tara Helfman, 'Marauders in the Courts: Why the Federal Courts Have Got the Problem of Maritime
Piracy (Partly) Wrong' (2012) 62 SyracuseLaw Review 53, 70: '[i]n recent history, robbery has been the revenue-raiser
of choice for pirates, and it is for this reason that most piracy litigation in the United States has focused on robbery
as a constituent element of the offence. But hostage-taking is another revenue-raising enterprise in which pirates have
historically engaged'. Cf also Christopher Douse, 'Combating Risk on the High Sea: An Analysis of the Effects of
Modern Piratical Acts on the Marine Insurance Industry' (2010) 35 Tulane MaritimeLawJournl267, 270.
31 On the use of the term, Munari, above n 5.
32 Other than the already quoted literature, for a reconstruction of the pirate's modus operandievolution, see Rebecca
Fantauzzi, 'Rascals, Scoundrels, Villains, and Knaves: The Evolution of the Law of Piracy from Ancient Times to the
Present' (2011) 39 InternationalJournal of Legal Information 346.
33 For different interpretations of the private end requirements, cf Ronzitti, above n 24, 2, and Douglas Guilfoyle,
Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009) 36 f.
34 Munari, above n 5, 336 ff, and Guilfoyle, above n 4, 150.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

subjective element might prove to be difficult, whilst the lack of state authorisation would be
easier to be determined for the purposes of classification of a given conduct, the legislative
history of the rules on piracy, as well as state practice, should be kept into consideration.
Firstly, the Report of the expert committee for the progressive codification of international
law of the League of Nation 35 excluded in 1926 that violent political acts could have been
qualified as piracy. Secondly, the commentary to art 16 of the Harvard Draft Convention
on Piracy took a similar approach, also specifying that insurgents, when acting for purposes
36
other than political in nature, should have been considered pirates.
Other than these sources of international law, whose relevance has to be evaluated in
light of art 38 of the Statute of the International Court of Justice (ICJ), state practice also
seems to have rejected the private/public dichotomy theory. When drafting the 1958 Geneva
Convention on the High Seas, some states - acknowledging the importance of the definition
of the piratical conduct - such as Czechoslovakia 37 and Russia 38, argued to drop the reference
to the private end requirement so to extend the scope of application of the rules on maritime
piracy. Notwithstanding such proposals, the text of the Convention still referred to the
definition of piracy offered by the Harvard research.3 9 From this deliberate 'non-evolution' of
treaty-based provisions related to piracy, it could be inferred a contrario the will of states to
make sure piracy was applicable to traditional violent actions on the high seas committed for
personal economic/non-economic gains.

35 Committee of Experts for the Progressive Codification of International Law, 'Questionnaire n 6, adopted by the
Committee at its Second Session, held in January 1926, Annex, Report of the Sub-Committee' (1926) 7heAmerican
Journalof InternationalLaw 222, 223 if, where it can be read that 'Certain authors take the view that desire for gain
is necessarily one of the characteristics of piracy. But the motive of the acts of violence might be not the prospect of
gain but hatred or a desire for vengeance. In my opinion it is preferable not to adopt the criterion of desire for gain,
since it is both too restrictive and contained in the larger qualification 'for private ends.' It is better, in laying down a
general principle, to be content with the external character of the facts without entering too far into the often delicate
question of motives. Nevertheless, when the acts in question are committed from purely political motives, it is hardly
possible to regard them as acts of piracy involving all the important consequences which follow upon the commission
of that crime. Such a rule does not assure any absolute impunity for the political acts in question, since they remain
subject to the ordinary rules of international law'.
36 Harvard Research, 'Draft Articles on Piracy' (1932) 26 The American JournalofInternationalLaw Special Supplement
749, 857: 'This Article covers inter alia the troublesome matter of illegal forcible acts for political ends against foreign
commerce, committed on the high sea by unrecognised organisations. For instance a revolutionary organisation uses
an armed ship to establish a blockade against foreign commerce, or to stop and search foreign ships for contraband, or
to seize necessary supplies from foreign ships. These acts are illegal under international law, at least if the revolutionary
organisation has not been recognised as a belligerent by the offended state, and in some cases the offended state has
proceeded to capture or destroy the offending ship. Some writers assert that such illegal attacks on foreign commerce
by unrecognised revolutionaries are piracies in the international law sense; and there is even judicial authority to
this effect. It is the better view, however, that these are not cases falling under the common jurisdiction of all states
as piracy by the traditional law, but are special cases of offences for which the perpetrators may be punished by an
offended state as it sees fit. This is the view reflected by this Article. It leaves unaffected the right of an offended state
to seize and punish the offenders in accordance with the precedents cited (and, of course, this may, at the option of
the prosecuting state, include conviction and punishment for piracy under its municipal law); but it does not concede
jurisdiction on the ground of piracy in the international sense to states not offended or threatened. These cases often
involve serious political considerations which may direct the course of action of the offended State. The Article does
not dictate any course of action; it merely preserves such criminal and police jurisdiction as is given by traditional
law. If an attack by a ship manned by insurgents is inspired by a motive of private plunder, it may be piracy under the
definitions of the draft convention'. For a first reading on the quoted sources, see Kevin Jon Heller, 'Judge Kozinski's
"Rich History" of Piracy', Opiniojuris,< ttp //opinioiusorE/2013/02/27/i udge-kozi nskis-rich-historV f u acvl>.
37 UN Doc A/Conf 13/40, 27,h sess, [33].
38 On which see Nancy Douglas Joyner, Aerial Hjackingas an International Crime (Oceana Publications, 1974) 100.
39 Cf Munari, above n 5, 332.
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

Additionally, states, when called to address borderline events such as those of the Santa
Maria40 and the Achille Lauro,41 both political in nature and lacking the two ship requirement,
did not reconsider the definition of piracy, but rather drafted the 1988 Suppression of Unlawful
Acts Convention (SUA Convention) to deal with unlawful acts other than4 2 piracy.
Lastly, the UNCLOS definition still refers to the private end requirement, in spite of
the fact that the debate on that element was well developed at that time. All these elements
together seem to confirm the validity of the private/political dichotomy, rather than the
private/public dichotomy theory for the interpretation of the private end requirement, thus
also recognizing the different nature of acts committed on the high seas for political purposes
from other violent conducts constituting piracy.43
If treaty-based state practice up until the first half of the '80s seems in favor of excluding
the private/public dichotomy theory, evolutionary trends in the interpretation of the crime
are still ongoing in the 21st century. It is in this context that the treatment of environment
protesters has to be evaluated. In particular, eco-activists argue that their actions are not driven
by private purposes, since their goal is to promote a green agenda for the common good.
According to protesters, the reasons for their actions - the protection of the environment for
the common good - would fall outside the private end requirement, with the consequent
inapplicability of the rules on maritime piracy.
In spite of this defence, the US Court of Appeals in the SSCS case granted the plaintiff
preliminary and permanent injunctive relief against the SSCS. In granting such relief, the
court interpreted the 'private end requirement' in accordance to the private/public dichotomy
theory. In the court's eye, '[t]he context here is provided by the rich history of piracy law,
which defines acts taken for private ends as those not taken on behalf of a state'. However, it
seems that this 'rich history' finds little comfort in state practice.
As seen, prior to UNCLOS, state practice favoured the private/political dichotomy.44
According to this interpretation of the private end requirement, protesters' actions would
not constitute piracy, given that protesters' violent actions do not strictly pursue personal
purposes, but rather general interests, or, eventually, being actions political in nature. Also
state practice after UNCLOS confirms the traditional interpretation of the private end
requirement: only one case has labelled environment protesters as pirates,4 arguing that
their actions were driven by personal purposes.46 Ever since that decision, eco-activists, who

40 Here, opponents to the Portuguese regime took, in January 1961, a ship with the aim to overthrow the Portuguese
'dictatorship', hence providing overseas territories with freedom and independence. The ship was though not attacked
by another ship, but rather by persons who got as passengers on the vessel itself. For a detailed study of the events, see
Barry Hart Dubner, 7he Law ofInternationalSea Piracy (Brill, 1980) 146.
4 'The facts were quite similar to those of the Santa Maria: the vessel was seised in 1985 to obtain the liberation of 50
Palestinian detainees. On the facts of the Achille Lauro, see Halberstam, above n 4.
42 Robin Geiss and Anna Petrig, Piracy andArmed Robbery at Sea: 7he Legal Frameworkfor Counter-PiracyOperations in
Somalia and in the Gulf ofAden (Oxford University Press, 2011) 54.
43 In such terms also Natalino Ronzitti, Introduzione al DirittoInternazionale (Giappichelli, 2012) 131, excluding that
violent acts committed on the high seas for terroristic purposes can be subsumed under the notion of piracy.
44 The US Court of Appeals makes reference to US Supreme Court, Peter Harmony at al v United States, 43 US 210
(1844).
45 Belgian Supreme Court CastleJohn and NederlandseStichting Sirius v NVMabeco and NV Parfin (1986) 77 ILR, 537,
on which, other than the already quoted literature, see Robin Churchill, 'The Piracy Provision of the UN Convention
on the Law of the Sea - Fit for Purpose?' in Panos Koutrakos, Achilles Skordas (eds), 7he Law and Practice ofPiracy
at Sea: European and InternationalPerspectives (Hart Publishing, 2014) 14 ff.
46 Belgian Supreme Court, CastleJohn andNederlandseStichting Sirius v NVMabeco and JVParfln (1986) 77 ILR 537, 540.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

did not stop acting, were never again condemned for piracy.47 For example, Japan never
prosecuted SSCS activists for piracy,48 even though Japan expressed such intention.4 9
This state practice lacking actual prosecution of protesters as pirates has to be read in the
light of the new Japanese legislation on piracy, which is not conceived to be applied against
eco-activists 5° in spite of the fact that Japanese researchers are amongst those who are most
attacked by protesters.
It seems that state practice in general, and in particular the one concerned with eco-
activisms, is inconsistent, at least. 51 Where some states, as Japan, labelled protesters as 'pirates'
subsequently creating a new law on piracy not conceived to prosecute activists, protesters
where never convicted for the crime of piracy, nor new legislations have been conceived to be
applied against such kind of violence at sea.
In this sense, an evolution of state practice with regard to a possible new interpretation
of the private end requirement seems to lack, since it does not appear that - as of today - a
practice has been widely accepted as law.52 Even though - as stated by the ICJ53 - the search
for customary rules cannot be confined into pre-constructed models, it does not seem possible
to argue that a development in state practice is given. On the contrary, some have argued
that states are willing to turn a 'blind eye ' 54 to the repression of eco-activism. Of course, this
"blindness" is strictly connected with the circumstance that, in many cases, organizations
such as the SSCS acquire attention and sympathy from masses.

47 See Moffa, above n 10, 210, and Benedetto Conforti and Angelo Labella, An Introduction to InternationalLaw (Brill,
2012) 93.
48 Eg in the case of Pete Bethune, arrested after having attacked the Shonan Maru N 2 in 2010, he was arrested and
prosecuted for felonies such as trespass and assault. For a first reading on the case, see Joanna Mossop, 'The Secu-
rity Challenge Posed by Scientific Permit Whaling and its Opponents in the Southern Ocean' in Alan Hemmings,
Donald Rothwell and Karen Scott (eds), Antarctic Security in the Twenty-First Century. Legal and Policy Perspectives
(Routledge, 2012) 314.
49 Lawrence E Likar, Eco-warriors,Nihilistic Terrorists, and the Environment (ABC-CLIO, 2011) 94.
50 On the Japanese law Punishment of and Measures Against Acts of Piracy, n 55, 19 June 2009, and on the positions
expressed by the Japanese Government on the non-applicability of the new law to eco-activists, see Atsuko Kanehara,
'So-Called 'Eco-Piracy' and Interventions by NGOs to Protest Against Scientific Research Whaling on the High Seas:
An Evaluation of the Japanese Position' in Clive Symmons (ed), Selected ContemporaryIssues in the InternationalLaw
of the Sea (Martinus Nijhoff Publishers, 2011) 205 if; Atsuko Kanehara, 'Japanese Legal Regime Combating Piracy
- The Act on Punishment of and Measures Against Acts of Piracy' (2010) 53 Japanese Yearbook ofInternationalLaw
469 if; Mariko Kawano, 'The first Experience of Prosecution under the Japanese Anti-Piracy Act of 2009' in Gemma
Andreone (ed), Jurisdictionand Control at Sea: Some En vironmentaland Security Issues (Giannini editore, 2014) 115.
o1 On the 'inconclusive' position of the Japanese Government, see Clive Symmons, 'Use of the Law of Piracy to Deal
with Violent Inter-Vessel Incidents at Sea Beyond the 12 Mile Limit: the Irish Experience' in Clive Symmons (ed),
Selected ContemporaryIssues in the InternationalLaw of the Sea (Martinus Nijhoff Publishers, 2011) 193.
52 In more general terms, the fact that the emergence of a new customary rule on the interpretation of the private end
requirement is struggling seems coherent with the crisis of customary law. As known, de-colonised states criticised
the 'European' origin of international customs, which were subsequently codified in the Geneva conventions of 1958.
In general, on the crisis of customary law see Stefano Dominelli, 'Questioni di Responsabilit6 Nella Prima Advisory
Opinion della Camera per i Fondali Marini' (2012) I DirittoMarittimo 700, 711 for further references.
53 See in the case law of the International Court of Justice, North Sea ContinentalShelf Cases (FederalRepublic of Germa-
ny/Denmark, FederalRepublic of Germany/Netherlands)(Judgments) [1969] ICJ Rep 3 [74].
54 In this sense, Gerry Nagtzaam and Pete Lentini, 'Vigilantes on the High Seas? The Sea Shepherds and Political Vio-
lence' (2007) 20 Terrorismand PoliticalViolence 110.
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

However, whilst a possible future evolution should not be excluded a priori," the ratio
underlying the very power of states against pirates might be an obstacle to the inclusion of
eco-protesters in such category. One of the most significant powers of states in the repression
of piracy is the exercise of universal jurisdiction. Where the need to repress acts against the
freedom of the high seas has led to the development of the power of states to exercise their
jurisdiction regardless of the flag of the ship, it remains to be seen if such ratio, read in light
with the need to ensure safety at sea, can also be employed to argue the existence of an
universal jurisdiction against eco-protesters. However, it remains that universal jurisdiction
is not the general rule, and was developed for a very specific crimina iurisgentium.
In any case, until state practice sufficiently and clearly develops to classify eco-activists as
pirates, the private end requirement has to be understood as a private/political dichotomy,
lacking in the cases of unauthorized actions of environment protesters that - implementing a
green agenda- attack ships on the high seas for the protection of public and general interests
in the preservation of the marine environment.6

IV Eco-activism and Maritime Piracy:A Dual Concept Jeopardising

Human Rights?
The trend to qualify environment protesters as pirates carries a number of consequences. In
the first place, as it has been noted in the legal literature:

By calling the environmental interventionists 'pirates', the Ninth Circuit encourages

the Japanese to retaliate with violence at sea against Sea Shepherd for interfering
57
with their whaling operations or seeking their prosecution as 'pirates' in Japan.

An encouragement that, of course, can be read in light of a possible emergence of a

regional custom.
Secondly, human rights implications have to be kept in mind. Should a criminal court
be convinced of the interpretation of the Court of Appeals, also in light of the fact that
the US Supreme Court has not granted a writ of certiorari, and find protesters guilty of
piracy, protesters' human rights could be infringed. Public international law knows two
core principles" in criminal law: the principle of nullum crimen and the principle of nulla
poena sinepraevialegepoenali. Criminal laws are not to be retroactively applied, nor applied

55 In general, on the formation of customary law, see Luzzatto, above n 15, in particular 51 if; Augusto Sinagra and
Paolo Bargiacchi, Lezioni di Diritto Internazionale Pubblico (Giuffre, 2009) 126; Ronzitti, above n 43, 162; Enzo
Cannizzaro, Corso di Diritto Internazionale(Giuffre, 2011) 87 ff. With specific reference to such possible evolution,
see already Stefano Dominelli, 'Human Rights at Sea: Does the Law of the Sea Clash with Well-Established Human
Rights Principles?' in Gemma Andreone (ed), Jurisdictionand Controlat Sea: Some Environmental and Security Issues
(Giannini editore, 2014) 127, 149 ff.
56 Cf Churchill, above n 45, 14 f; Nagtzaam and Lentini, above n 54, 127; Symmons, above n 51, 191; Donald Roth-
well, 'Law Enforcement in Antarctica' in Alan Hemmings, Donald Rothwell and Karen Scott (eds), Antarctic Security
in the Twenty-First Century.Legal and Policy Perspectives (Routledge, 2012) 150; Ann Powers and Christopher Stucko,
'Introducing the Law of the Sea and the Legal Implications of Rising Sea Levels' in Michael Gerrard and Gregory
Wannier (eds), 7hreatenedIsland Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge Uni-
versity Press, 2013) 123, 137; Moffa, above n 10, 210; Doby, above n 10, 143 if; Hoek, above n 10, 186.
57 In these very terms, Dubner and Pastorius, above n 10, 439.
58 Cf Shahram Dana, 'Beyond Retroactivity to Realizing Justice: a Theory on the Principle of Legality in International
Criminal Law Sentencing' (2009) 99 7heJournal of CriminalLaw and Criminology 857, 859.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

in malam partem; it also follows that no one can be condemned for a crime that was not
criminalised at the time the conduct was held. 59
These principles are functional - as noted by international courts60 - to the protection
of individuals from possible arbitrary interferences of states in their lives. Domestic61 and
international6 2 practice shows the existence of the aforementioned principles, even though
international criminal law - when applied by international courts - does not necessarily
require the written form, where, on the contrary, such form is most often required at the
3
domestic level for national criminal laws implemented by local court.1
Notwithstanding this specification, it is undisputed that 'no one shall be held guilty of
any criminal offence on account of any act or omission which did not constitute a criminal
offence, under national or international law, at the time when it was committed'." Thus, it
seems that it can be argued that if eco-activists were nowadays condemned for piracy, the
dual concept of eco-activism and maritime piracy would not only constitute a misapplication
of the law of the sea, but might also amount to a violation of fundamental principles of
human rights law.
Nevertheless, it must be reminded that interpretation by analogy in criminal matters,
whilst subject to strict limits, is admitted, in some cases. For example, in the case law of
the European Court of Human Rights it is accepted that a departure in interpretation of
criminal offences from previous case law does not infringe human rights if it is not difficult
or impossible to foresee the departure from the previous case law, and thus to realise, at
the time the conduct is held, that the acts might carry a criminal sanction. Following this
interpretation, possible future human rights violation might become difficult to prove.

59 In this sense, Claus Kreg, 'Nulla Poena Nullun Crimen Sine Lege' in RiidigerWolfrum, 7he Max Planck Encyclopedia
of Public InternationalLaw, Vol VII (Oxford University Press, 2012) 890 ff.
60 Consistence of CertainDanzig Legislative Decrees with the Constitution of the Free City (Advisory Opinion) [1935] PCIJ
Series A/B 65, 56.
61 Under historical perspective, the 1776 Virginia Declarationof Rights, s 8; the 1776 Constitution ofMaryland, art XV;
the 1787 Constitutionofthe United States ofAmerica, art 1, s 9, n 3, and - in Europe - the 1787 Constitutio Criminalis
Josephina, art 1, and the 1810 Napoleon Criminal Code, art 4, can be recalled.
62 Cf Universal Declaration of Human Rights, GA Res 217A (111), UN GAOR, 3 r1 sess, 183 rl plen mtg, UN Doc A/
RES/217A (III) (10 December 1948), art 11(2); Convention (III)relative to the Treatment of Prisoners of War, opened
for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), art 99(1); Convention for the
Protection of Human Rights andFundamentalFreedoms, opened for signature 4 November 1950, CETS No 5 (entered
into force 3 September 1953), art 7; African Charteron Human andPeoples'Rights,opened for signature 27 June1981,
OAU Doc CAB/LEG/67/3 rev 5, (1982) 21 International Legal Materials 58 (entered into force 21 October 1986),
art 7(2); International Covenant on Economic, Social and CulturalRights, International Covenant on Civil and Polit-
ical Rights and Optional Protocolto the InternationalCovenant on Civil and PoliticalRights, GA Res 2200A (XXI),
h
UN GAOR, 21" sess, 1496 plen mtg, UN Doc A/RES/2200A (XXI) (16 December 1966) (ICCPR), art 15. See
also Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc
S25704 (3 May 1993), [34], <httD://www.un.orE/ga/search/view doc.asDsvmbol 5/25704>. In addition, see also
Statute of the International Criminal Court art 22 and the decisions of the Extraordinary Chambers in the Courts of
Cambodia, Supreme Court Chamber, in Case No 1, Appeal Judgment (3 February 2012) [174] <htt://www.eccc.
gov.kh/sites/default/files/documents/courtdoc/Case%/20001AD a~demn~.d>.
63 In general, on the sources of international criminal law, see M Cherif Bassiouni, 'The Discipline of International
Criminal Law' in M Cherif Bassiouni (ed), International CriminalLaw, Vol I (Martinus Nijhoff Publishers, 3r' ed,
2008) 3; Antonio Cassese and Paola Gaeta, Cassess International CriminalLaw (Oxford University Press, 2013) 9;
Dapo Akande, 'Sources of International Criminal Law', in Antonio Cassese (ed), 7he Oxford Companion to Inter-na-
tional CriminalJustice (Oxford University Press, 2009) 51.
64 ICCPR, art 15(1), first period.
65 European Court of Human Rights, Affaire Pessino v France, Application 40403/02, Judgment (10 October 2006).
 AUSTRALIAN INTERNATIONAL LAW JOURNAL

V Eco-activism:A Possible Legal Qualification under Current

International Law
Up until now, the idea sustained is that environment protesters are not pirates given the lack of
the private end requirement. This does not mean that violent conducts are legitimate and lawful.
To determine the possible legal framework to ensure safe navigation at sea, it seems necessary
to reflect on the legal qualification of protesters' actions. Since they assume to act to implement
a green agenda in the interests of the common good, it can be argued that the private end
requirement is lacking. The intention to act for the interests of the eco-system might however
be hard to prove in court. Whilst there is no doubt that actions to preserve the eco-system can
be driven by the desire to protect a general and collective interest ('collective end'), and might
have a political value, there is also little doubt that protesters act in their own interest too,
since they need and enjoy the eco-system as well ('private end'). In their actions, a concurrence
of 'collective', 'political' and 'private' ends might be detected, thus making it necessary for
courts to determine, also taking as an example previous case law6', whether the 'collective' and
'political' ends outweigh the 'private' one. This would require an investigation in protesters'
mens rea, with hardly foreseeable outcomes. Should a court argue that protesters' actions are
primarily driven by the desire to ensure their possibility to live and enjoy a healthy eco-system,
or to satisfy their own personal feeling in protecting nature (non-economic personal gains), the
private end requirement could be said to be present, respecting the traditional interpretation
of the element.
However, where violent actions on the high seas are conducted, it seems reasonable that
the intention to protect the environment from exploitation is more evident that the intention
to individually enjoy the eco-system. This, under the traditional interpretation of the private
end requirement, would mean that protesters' actions do not amount to piracy, and a
different legal framework to ensure safety at sea has to be identified. In such an investigation,
one should also take into consideration the goals and the aims of eco-activist societies, ie, to
influence the conduct of individuals and states, even by employing violence if necessary, and
wonder if protesters' (violent) actions might be considered terrorism. 67 Again, with reference
to the SSCS, it should also be noted that the goal is in part fulfilled: due to the numerous
attacks directed against Japanese ships, the flag state decided in 2011 to conclude the whale
68
scientific research activities before the scheduled time.
Believing that the rules on piracy are not (at least nowadays) the proper legal framework,
international law already seems to have a legal framework states could rely on to fight the
phenomenon and ensure safety on the high seas. The 1988 SUA Convention does not make

66 In Republic of Bolivia v Indemnity Mutual Marine Assurance Company LTD [1909] 1 KB 785, the concurrence of
private and political ends was determined. The court had thus to determine which one was characterized the conduct.
67 Organisations do not admit that they want to influence the conduct of private and international actors; they argue
that their only goal is to protect the eco-system, rather than to influence anybody's conduct (see the Defendants'
Motion to Dismiss Plaintiffs' Complaint under Federal Rule of Civil Procedure 12(b), (2), <httD:/wwl.Drweb.com/
0O8/908766/SeaSheyDismissMtonFiled.pdf>). A possible qualification of the SSCS conducts as
terroristic seems theoretically consistent with at least one of the given definitions of terrorism, according to which
'[terrorism...] can be defined broadly as using or threatening to use violence against innocent people or non-combat-
ants - or even property - to effect political change and achieve political goals by creating an atmosphere of fear' (cf
Nagtzaam and Lentini, above n 54, 110).
68 In spite of such achievement, it should also be noted that Japanese missions did not come to an end. Cf Richard
Black, 'Japan "to Continue" Antarctic Whaling', BBC News (12 July 2011) <httD:/!www.bbc.co.uk/news/science-en-
vironment-14132320>. On the early closure of the missions, see Doby, above n 10, 135.
 EVOLUTIONARY TRENDS IN MARITIME PIRACY

any direct6 9 reference to terrorism in defining its material scope of application, being thus
applicable to any act of violence on the high seas that does not amount to piracy. According
to the SUA Convention,7 states have an obligation to criminalize at the domestic level 71 the
conducts described in the treaty, encompassing all conducts that pose a threat 72 to safety on
the high seas. However, the SUA Convention does not perfectly satisfy the needs of those
qualifying eco-activists as pirates. According to UNCLOS, states fighting maritime piracy
enjoy particular rights, even though balanced by procedural obligations and responsibilities
in case of misuse or errors in the exercise of such powers, such as the right to visit the ship
and exercise universal jurisdiction. The SUA Convention does not provide states with the very
same rights. States here recognise their jurisdiction only in those circumstances in which a
nexus between the unlawful conduct and the flag exists (being this connection, for example,
the nationality of perpetrators or victims), 73 thus implicitly excluding a general right to visit
the ship. 7' Nonetheless, subsuming violent acts of eco-activists under the scope of application
of the SUA Convention seems more respectful of human rights of individuals who, at the
same time, should take no advantages from international legal gaps.
If states, also in light of the upsurge of action of eco-activists wish to create provisions similar to
7
those applicable in the context of the fight against maritime piracy, they should 'open their eyes' 1
and create an ad hoc legal framework76 to deal with the phenomenon or at least clearly establish
an new international custom extending the scope of application of the rules on maritime piracy,
so to ensure both and at the same time safe navigation and respect for fundamental human rights.

69 A reference to terrorism can still be found in the preamble, where it can be read that '[t]he State parties to this con-
vention [...] Recalling resolution 40/61 of the General Assembly of the United Nations of 9 December 1985 which,
inter alia, 'urges all States unilaterally and in co-operation with other States, as well as relevant United Nations organs,
to contribute to the progressive elimination of causes underlying international terrorism and to pay special attention
to all situations, including colonialism, racism and situations involving mass and flagrant violations of human rights
and fundamental freedoms and those involving alien occupation, that may give rise to international terrorism and
may endanger international peace and security'; Recalling further that resolution 40/61 'unequivocally condemns, as
criminal, all acts, methods and practices of terrorism wherever and by whomever committed, including those which
jeopardize friendly relations among States and their security'; Recalling also that by resolution 40/61, the Interna-
tional Maritime Organization was invited to 'study the problem of terrorism aboard or against ships with a view to
making recommendations on appropriate measures".
70 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 10
March 1988, 1678 UNTS 201 (entered into force 1 March 1992) (1988 SUA Convention)now ratified by 161 States,
and the Protocolto the 1988 Conventionfor the Suppression of UnlawfulActs againstthe Safety ofMaritime Navigation,
opened for signature 14 October 2005, IMO Doc LEG/CONF 15/21 (entered into force 28 July 2010) (2005 SUA
Protocol), now ratified by 24 States, and the Conventionfor the Suppression of UnlawfulActs Against the Safety of Mar-
itime Navigation, opened for signature 14 October 2005 (entered into force 28 July 2010) (2005 SUA Convention),
ratified by 28 States.
71 See 2005 SUA Convention, art 5.
72 See 1988 SUA Convention, art 3, and 2005 SUA Convention, art 4.
73 1988 SUA Convention, art 6.
74 Cf Klein, above n 10, 153.
75 The expression is suggested by Nagtzaam and Lentini, above n 54, who argue that States turn a blind eye ('the Sea
Shepherds and the whalers may both engage in illegal activities, but are not prosecuted, may indicate that states and
the international community may have neither the will nor the means to enforce laws against them. Therefore, they
may be turning a blind eye to their actions').
76 On the opportunity to create ad hoc rules, see Ronzitti, above n 24, writing that '[t]he 1988 IMO Convention spe-
cifically deals with maritime terrorism, but the problem of arresting and seizing vessels in the hands of terrorists has
not been object of any rule. Article 9 of this convention clearly states that 'the rules of international law pertaining to
the competence of States to exercise investigating or enforcement jurisdiction on board of ships not flying their flags,
are not affected".
VI Conclusion
Changes in the pirates' modus operandihave tested traditional legal definitions. Where at first
only robbery at sea supported by a specific animusfurandientitled states to take appropriate
actions to ensure safety at sea in spite of the traditional principle of the flag state, 77 nowadays,
any act of violence on the high seas from one ship to another falls within the definition of
piracy, if this act is committed for 'private ends'.
Past evolutionary trends have changed and shaped contemporary legal definitions, which
are - if not infieri- still challenged to adapt to current needs. Emerging state practice seems
nowadays willing to continue re-shaping the definition of piracy, in particular by offering
an interpretation of the private end requirement broad enough to encompass all private
acts lacking state authorisation. Environment protesters offer to courts of some states the
opportunity to re-consider the relationship between piracy and unauthorized violent acts on
the high seas. However, where eco-activists have been in some cases labelled as pirates, as of
today, general state practice seems inconsistent on the treatment of protesters.
On the one hand, current trends to label eco-activists as pirates might amount to
a violation of fundamental human rights; a violation that could be avoided if the SUA
Convention is applied to ensure safe navigation. Where, as for now, the qualification of eco-
activists as pirates seems inconsistent with the interpretation of the private end requirement,
there is indeed no doubt that (violent) actions of protesters should not be considered lawful.
As of today, it appears that the SUA Convention, even though not granting to states powers
as extended as in piracy matters, might be the international legal framework best suited to
ensure safety at sea.
On the other hand, this trend, even if not clear now, nor sufficiently developed to foster
the emergence of an international custom, nonetheless exists. Environment protesters
are not likely to limit their actions in the future, 7S meaning that they might give further
chances to courts (and states in general) to take position on the matter. Should in the future
a widespread and consolidated state practice be developed in accordance to contemporary
trends, environment protesters will be pirates under international law. In more general terms,
a consolidation of this trend would lead to the adoption of the private/public dichotomy
theory for the interpretation of the private end requirement. In other words, this leaves open
the question on whether environment protesters might be the missing link that will allow
states to label any unauthorized act of violence on the high seas (between two ships) as piracy.

On the powers to repress piracy on the high seas, other than the already quoted literature, see Gemma Andreone,
Giorgia Bevilacqua, Giuseppe Cataldi and Claudia Cinelli (eds), Insecurity at Sea: Piracyand OtherRisks to Navigation
(Giannini Editore, 2013).
Testifying that eco-protesters actions are still carried out, even though not necessarily with modalities that raise
questions on the possible qualification of the acts as piratical in nature, see the possible imprisonment SSCS activists
may face due to their interference with the Danish grindadrdp in 2015: <httD://v-w.theguardian.com/environ-
-
ment/2015/iul/22/two-sea-shepherd-whale-hunt-protesters-arrested-in- faroe-islandsCMP-twt environmentAgd
neco>.