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


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 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, military ships are deemed not to be pirates because of a state authorisation for their actions.33

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 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 other than political in nature, should have been considered pirates. (36)

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. (39) 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.

Additionally, states, when called to address borderline events such as those of the Santa Maria (40) 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 than (42) 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, (45) arguing that their actions were driven by personal purposes. (46) Ever since that decision, eco-activists, who 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. (49)

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 (50) 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 ecoactivisms, 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 ICJ (53)--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.

However, whilst a possible future evolution should not be excluded a priori, (55) 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 iuris gentium.

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. (56)

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 with their whaling operations
   or seeking their prosecution as 'pirates' in Japan. (57)

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 (58) in criminal law: the principle of nullum crimen and the principle of nulla poena sinepraevia legepoenali. Criminal laws are not to be retroactively applied, nor applied 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. (55)

These principles are functional--as noted by international courts (60)--to the protection of individuals from possible arbitrary interferences of states in their lives. Domestic (61) and international (62) 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 domestic level for national criminal laws implemented by local court. (63)

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'. (64) Titus, 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. (65) Following this interpretation, possible future human rights violation might become difficult to prove.

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 law (66), 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 scientific research activities before the scheduled time. (68)

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 any direct (69) 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, (70) states have an obligation to criminalize at the domestic level (7)' 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. (74) 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 those applicable in the context of the fight against maritime piracy, they should open their eyes' (75) and create an ad hoc legal framework (76) 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.

VI Conclusion

Changes in the pirates' modus operandi have tested traditional legal definitions. Where at first only robbery at sea supported by a specific animus furandi entitled 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 in fieri--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, (78) 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.


* Post-Doctoral Contract Research Fellow in EU law, University of Genoa (Italy), Department of Law.

(1) 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: International Law, Strategy and Diplomacy at Sea (ABC-CLIO, 2nd ed, 2011) 6 ff.

(2) Geneva Convention on the High Seas, opened for signature 29 April 1938, 450 UNTS 11 (entered in force 30 September 1962).

(3) Generally, on the letters of marque, Francesca Graziani, Il Contrasto Alla Pirateria Marittima Nel Diritto Intemazionale (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 of International Law 141; Malvina Halberstam, 'Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety' (1988) 82 The American Journal of International Law 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.

(7) On which see Myres Smith MacDougal and William Thomas Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (New Heaven Press, 1987) 809 ff. Cf the UN Security Council (SC) resolutions: SC Res 1814, UN SCOR, 63rd sess, 5902nd mtg, UN Doc S/RES/1814 (15 May 2008); SC Res 1816, UN SCOR, 63rd sess, 6026th mtg, UN Doc S/RES/1816 (2 June 2008); SC Res 1838, UN SCOR, 63rd sess, 5987th mtg, UN Doc S/ RES/1838 (7 October 2008); SC Res 1851, UN SCOR, 63rd sess, 6046th mtg, UN Doc S/RES/1851 (16 December 2008); SC Res 1863, UN SCOR, 64th sess, 6068th mtg, UN Doc S/Res/1863(16 January 2009); SC Res 1897, UN SCOR, 64th sess, 6226th mtg, UN Doc S/RES/1897 (30 November 2009); SC Res 1918, UN SCOR, 65th sess, 6301st mtg, UN Doc S/RES/1918 (27 April 2010); SC Res 1950, UN SCOR, 65th sess, 6429th mtg, UN Doc S/RES/1950 (23 November 2010); SC Res 1976, UN SCOR, 66th sess, 6512th mtg, UN Doc S/RES/1976 (11 April 2011); SC Res 2010, UN SCOR, 66th sess, 6626th mtg, UN Doc S/RES/2010 (30 September 2011); SC Res 2015, UN SCOR, 66th sess, 6635th mtg, UN Doc S/RES/2015 (24 October 2011); SC Res 2020, UN SCOR, 66th sess, 6663rd mtg, UN Doc S/RES/2020 (22 November 2011) and SC Res 2036, UN SCOR, 67th sess, 6718th 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 off the Somali coast, OJ L 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 for the territorial extension of the mission and the extension of the temporal framework of the action). On the EU's action, see Marta Bo, 'EU Counter-Piracy Operations and the Protection of Human Rights at Sea in Maria Elena De Maestri and Stefano Dominelli (eds), Party Autonomy in European Private (and) International Law (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 Fundamental Freedoms, opened for signature 4 November 1950, CETS No 5 (entered into force 3 September 1953). CfV G Koln, Urteil vom 11 November 2011, Az 25 K 4280/09, in Hamburger Zeitschrift fur Schijfahrtsrecht (2012) 153, and OVG Nordrhein-Westfalen, 18 September 2014-4A 2948/11, in Die Offentliche Verwaltung (2015) 343. In general, on the decision of the VG Koln, 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 Other 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, 'Il Problema Della Repressione del Reato di Pirateria Marittima e il Necessario Bilanciamento tra le Esigenze di Esercizio Effettivo della Giurisdizione e di Garanzia dei Diritti Individuali' (2012) Il Diritto Marittimo 664; James Thuo Gathii, 'Piracy Prosecution: Kenya's Piracy Prosecutions' (2010) 104 The American Journal of International Law 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.

(10) Among the contributions specifically devoted to such issue, see Barry Hart Dubner, Claudia Pastorius, 'On the Ninth Circuits New Definition of Piracy: Japanese Whalers v the Sea Shepherd--Who are the Real "Pirates" (ie Plunderers)?'(2014) 45 Journal of Maritime Law & Commerce 415; Debra Doby, 'Whale Wars: How to End Violence on the High Seas' (2013) 44 Journal of Maritime 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 The 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 Contemporary Issues in the International Law 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 of Animal 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 Environmental Law and Policy Review 613; Anthony Moffa, 'Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the Southern Ocean' (2012) 37 The Yale Journal of International Law 201; Whitney Magnuson, 'Marine Conservation Campaigners as Pirates: The Consequences of Sea Shepherd' (2014) 44 Environmental Law 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 Universities Law Review 82.

(11) See <>.

(12) World Charter for Nature, GA Res 37/7, UN GAOR, 37th sess, Supp No 51, 17, UN Doc A/37/51 (28 October 1982), art 21 ff.

(13) On the international legal personality of individuals, and its evolutionary trends, see Sergio Maria Carbone, 'I Soggetti e Gli Attori Nella Comunita Internazionale' in Sergio Maria Carbone, Riccardo Luzzatto and Alberto Santa Maria (eds), Istituzioni di Diritto Internazionale (Giappichelli, 4th 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] <>, where the International 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 International Convention for the Regulation of Whaling (International Convention 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 Rothwell (eds), The Law of the Sea and the Polar Regions: Interactions Between Global and Regional Regimes (Brill, 2013) 267.

(15) On which see Riccardo Luzzatto, 'Il Diritto Internazionale Generale e le Sue Fond' in Sergio Maria Carbone, Riccardo Luzzatto and Alberto Santa Maria (eds), Istituzioni di Diritto Internazionale (Giappichelli, 4th ed, 2011) 77 ff. However, on the possible evolutions of international legal personality, see in the case law of the International Court of Justice, Reparation for 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 < case no.22/Request provisional measures en withtranslations.pdf>. In the legal literature, see Giorgia Bevilacqua, 'Eifettivita del Diritto Internazionale del Mare e Tutela delle Liberta Fondamentali Nel Caso "Arctic Sunrise'" (2014) Diritti Umani e Diritto Internazionale 188; Ilaria Tani, 'Il Caso 'Arctic Sunrise" (2014) Rivista Giuridica Dell'Ambiente 253.

(17) Cf for a report of the domestic proceedings, < events- since-the-Arctic-Sunrise-took-action-September-18- CET/>.

(18) New York Times, Europe Section, < greenpeacevessel-by- russia.html? r=1&>.

(19) United States Court of Appeals for the Ninth Circuit, Institute of Cetacean Research et al v Sea Shepherd Conservation Society et al, 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 < php?pk id=0000000655>.

(20) United States Court of Appeals for the 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 Environmental 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 Transnational Law Review 461; J DeVeaux Stockton, 'Pirates Who Neither Pillage Nor Plunder? The Ninth Circuit Is On Board' (2014) 8 Federal Courts Law Review 185; Jonathan Volinski, 'Recent Developments in Environmental Law' (2013) Tulane Environmental Law Journal, 333.

(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 of America v Mohammed Modin Hasan, Gabul Abdullahi Ali, Abdi Wali Dire, Abdi Mohammed Gurewardher, Abdi Mohammed Umar (29 October 2010).

(23) Cf Giorgio Righetti, Trattato di Diritto Marittimo, Vol 1 (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 The Ambrose 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), The Law and Practice of Piracy at Sea: European and International Perspectives (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 International Law (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 Terrorism and International Law (Martinus Nijhoff Publishers, 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.

(28) Clearly in this sense, International Maritime Organization, Circular Letter concerning Information and Guidance on Elements of International Law relating to Piracy (Circular letter No 3180 (17 May 2011) Annex, [13]), < http://www. letter 3180.pdf>.

(29) For references, see Stefano Dominelli, 'Il Pagamento del Riscatto ai Pirati Quale atto di Avaria Comune: Applicabilita delle Regole di York e Anversa in Italia e Possibili Sviluppi Nel Sistema Statunitense (2012) Il Diritto Marittimo 1189.

(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 Syracuse Law Review 33, 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 Maritime Law Journal 267, 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 operandi evolution, see Rebecca Fantauzzi, 'Rascals, Scoundrels, Villains, and Knaves: The Evolution of the Law of Piracy from Ancient Times to the Present' (2011) 39 International Journal 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.

(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) The American Journal of International Law 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 diem 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 Journal of International Law 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', Opinio Juris, <h ttp://opinio j piracy/>.

(37) UN Doc A/Conf 13/40, 27th sess, [33].

(38) On which see Nancy Douglas Joyner, Aerial Hijacking as an International Crime (Oceana Publications, 1974) 100.

(39) Cf Munari, above n 5, 332.

(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, The Law of International Sea Piracy (Brill, 1980) 146.

(41) 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 and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and in the Gulf of Aden (Oxford University Press, 2011) 54.

(43) In such terms also Natalino Ronzitti, Introduzione al Diritto Internazionale (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 Castle John and Nederlandse Stichting Sirius v NV Mabeco and NVParfin (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), The Law and Practice of Piracy at Sea: European and International Perspectives (Hart Publishing, 2014) 14 ff.

(46) Belgian Supreme Court, Castle John and Nederlandse Stichting Sirius v NV Mabeco and NV Parfin (1986) 77 ILR 537, 540.

(47) See Moffa, above n 10, 210, and Benedetto Conforti and Angelo Labella, An Introduction to International Law (Brill, 2012) 93.

(48) Eg in the case of Pete Bethune, arrested after having attacked the Shonan Marti 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 Security 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 Contemporary Issues in the International Law 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 of International Law 469 ff; Mariko Kawano, 'The first Experience of Prosecution under the Japanese Anti-Piracy Act of 2009' in Gemma Andreone (ed), Jurisdiction and Control at Sea: Some Environmental and Security Issues (Giannini edito re, 2014) 115.

(51) 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 Contemporary Issues in the International Law 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 Responsabilita Nella Prima Advisory Opinion della Camera per i Fondali Marini' (2012) II Diritto Marittimo 700, 711 for further references.

(53) See in the case law of the International Court of Justice, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark, Federal Republic 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 Violence' (2007) 20 Terrorism and Political Violence 110.

(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), jurisdiction and Control at 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 Rothwell, '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), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) 123, 137; Moffa, above n 10, 210; Doby, above n 10, 143 ff; 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 The Journal of Criminal Law and Criminology 857, 859.

(59) In this sense, Claus Krefi, 'Nulla Poena Nullun Crimen Sine Lege' in Rudiger Wolfrum, The Max Planck Encyclopedia of Public International Law, Vol VII (Oxford University Press, 2012) 890 ff.

(60) Consistence of Certain Danzig 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 Declaration of Rights, s 8; the 1776 Constitution of Maryland, art XV; the 1787 Constitution of the United States of America, 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 (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc AJ 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 and Fundamental Freedoms, opened for signature 4 November 1950, CETS No 5 (entered into force 3 September 1953), art 7; African Charter on Human and Peoples' Rights, opened for signature 27 June 1981, 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 Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN GAOR, 21st sess, 1496th 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], < doc.asp?symbol=S/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] <http://www.eccc. Case%20001AppealIudgementEn.pdf>.

(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 Criminal Law, Vol I (Martinus Nijhoff Publishers, 3rd ed, 2008) 3; Antonio Cassese and Paola Gaeta, Cassess International Criminal Law (Oxford University Press, 2013) 9; Dapo Akande, 'Sources of International Criminal Law', in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (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).

(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), <http://wwl prfiles/2012/01/08/9087660/SeaShepDismissMotionFiled.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- combatants --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) < environment- 14132320>. On the early closure of the missions, see Doby, above n 10, 135.

(69) A reference to terrorism can still be found in the preamble, where it can be read that '[t]he State parties to this convention [...] 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 International 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 Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime 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 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime 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 specifically 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".

(77) 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: Piracy and Other Risks to Navigation (Giannini Editore, 2013).

(78) 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: < islands?CMP=twt environmentAgdneco>.
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Author:Dominelli, Stefano
Publication:Australian International Law Journal
Date:Jan 1, 2014
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