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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).

The Sea Shepherd Conservation Society (Sea Shepherd) has garnered worldwide attention for its controversial methods of protecting whales and other marine wildlife, eliciting strong reactions from parties as disparate as Canadian Premiers and the South Park television show. (1) None of Sea Shepherd's conflicts have caused more disputes about the role of international law, piracy, and international treaties than its attacks against the Institute of Cetacean Research (Institute), a collection of Japanese scientific researchers whose hunting methods ultimately kill whales. (2) In Institute of Cetacean Research v. Sea Shepherd Conservation Society, (3) the United States Court of Appeals for the Ninth Circuit granted the Institute a preliminary injunction against Sea Shepherd, and its efforts to stop internationally authorized whaling. (4) The Ninth Circuit concluded that the District Court's denial of the preliminary injunction was a culmination of serious errors, primarily, its determination that Sea Shepherd's acts did not constitute piracy. (5)

In 1986, the International Whaling Commission (IWC) established a moratorium on commercial whaling. (6) Article VIII of the International Convention for Regulation of Whaling (Whaling Convention) allows "countries to engage in whaling for the purposes of scientific research." (7) In 1999, Australia laid claim to a region of the Southern Ocean which it called the Australian Whale Sanctuary (AWS) in an effort to give itself jurisdiction over the Japanese whalers who hunted in that region. (8) Australia's Federal Court issued a permanent injunction against the Japanese whalers but "neither Australia's courts nor other arms of its government have attempted to enforce the injunction." (9) Accordingly, Japanese whalers hunt humpback whales, sei whales, fin whales, and sperm whales, and some of this hunting has occurred in the off-limits AWS. (10)

The Institute is a fleet of Japanese whaling vessels that, for the last twenty years, has received a research permit from the Japanese government to capture and kill whales in the Southern Ocean. (11) Since the 2005-2006 whaling season, Sea Shepherd "has used a small fleet of ships (under Paul Watson's) command to stymie [the Institute's] whaling in the Southern Ocean." (12) The Japanese-flagged whaling fleet consists of three small ships for pursuing whales, one larger ship to hold the whale carcasses, and another large ship that is dedicated solely to offsetting Sea Shepherd's disruption efforts. (13) Sea Shepherd uses two Dutch-flagged fleet vessels that are smaller than the Japanese pursuit ships, and an Australian-flagged ship that is even smaller than the Dutch vessels. (14)

Sea Shepherd has engaged in numerous activities in the Southern Ocean in order to disrupt and ultimately stop the Institute from whaling. (15) Thus far, the it has thrown glass bottles containing paint or butyric acid, launched safety flares with metal hooks, thrown smoke bombs, employed high powered lasers, dragged towing lines to destroy the rudder or propeller of the ships, and intentionally piloted ships to collide with the whaling ships. (16) The Institute has deployed countermeasures such as bamboo poles, long-range acoustic devices, concussion grenades, and grappling hooks to fend off Sea Shepherd. (17) Neither party produced significant evidence of being harmed by these actions, although the whalers have videotaped ship collisions on three separate occasions. (18) The Institute sought injunctive and declaratory relief from the United States District Court for the Western District of Washington on four grounds: Alien Tort Statute (ATS) piracy claims; ATS safe navigation claims; admiralty claims; and civil conspiracy. (19) The Ninth Circuit held that the District Court had erroneously failed to issue the preliminary injunction against Sea Shepherd, and wrongfully dismissed the Institute's ATS piracy claims. (20)

All federal district courts are granted subject matter jurisdiction to establish whether a violation of the law of nations is actionable under the ATS. (21) In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court "held that the ATS might permit suits for violations of modern norms comparable to [the] paradigmatic late- eighteenth century norms of the law of nations," namely offenses against ambassadors, violations of safe conduct, and acts of piracy. (22) Actionable ATS violations of international law must concern specific, universal, and obligatory norms. (23) To remedy violations of international law norms, district courts have the power under the ATS to issue a preliminary injunction when a party demonstrates it is likely to suffer irreparable harm without the injunction, a likelihood of success on the merits, a balance of hardships in its favor, and that public interest would favor issuing an injunction. (24) Four major international treaties are relied upon to support claims of piracy and interference with maritime navigation: the United Nations Convention on the Law of the Sea (UNCLOS); Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA); International Regulations for Preventing Collisions at Sea (COLREGS); and the High Seas Convention. (25) Even courts in the same federal district have previously split on the question whether piracy meets specific, universal, and obligatory standards of international law claims. (26)

UNCLOS defines piracy as acts of violence outside of a state's jurisdiction that are directed against a ship and committed for private ends. (27) SUA serves as a source for deciding ATS safe navigation claims because SUA has traditionally been regarded as an international law source that manages claims of both privacy and safe navigation. (28) SUA prohibits acts of violence against either a person on board a ship or the ship itself which causes damage to the ship or its cargo, including placing a device or substance on a ship that is likely to damage the ship. (29) Courts can use seven factors to assess whether admiralty claims exist and determine what choice of law the court may use: the place of the wrongful act; the flag of the vessel; the allegiance or domicile of the injured party; the allegiance of the ship-owner; the place of the contract; the inaccessibility of the foreign forum; and the law of the forum. (30)

The importance of international comity stems from the basic principal that nations will typically favor their domestic interests over foreign interests presented in a domestic forum. (31) A domestic court's extension of international comity to foreign courts is neither an absolute obligation nor is it a formal courtesy. (32) International comity requires that decisions of foreign tribunals should be recognized in domestic courts when possible because such recognition expands the influence of U.S. courts in the international community and facilitates international cooperation. (33) Furthermore, legal authorities have understood that comity's obligations stop when recognizing comity would vitiate the public polices of the adjudicating forum. (34) Ultimately, international comity may encourage a court to show deference to foreign courts, but case-specific inquiries are appropriate when foreign adjudicative bodies elicit concerns over fairness. (35)

In Institute of Cetacean Research v. Sea Shepherd Conservation Society, the Ninth Circuit granted the Institute a preliminary injunction against Sea Shepherd, and reversed the dismissal of the Institute's ATS claims of piracy against Sea Shepherd. (36) The District Court correctly acknowledged that Sea Shepherd posed a substantial risk of continuing its tactics and behavior going forward, but incorrectly concluded that such continuing tactics and behavior did not require injunctive relief because no one had been irreparably harmed yet and such harm was unlikely to occur in the future. (37) The Ninth Circuit held that UNCLOS and SUA established international norms for ATS purposes and that the plain language of the treaties defined piracy in a way that certainly included Sea Shepherd Conservation Society's actions. (38) Furthermore, the Ninth Circuit stated that the District Court erred when it considered international comity concerns as a basis for denying the preliminary injunction when international comity concerns were actually inapplicable to the case. (39) International comity concerns were deemed irrelevant insofar as Australia did not have actual jurisdiction over the disputed AWS; any judicial recognition of Australian jurisdiction would contravene the established position of the United States government. (40)

The Ninth Circuit correctly reversed the District Court's decision, holding that issuing a preliminary injunction against the whalers was required, and that dismissal of piracy claims against Sea Shepherd was wrong. (41) The District Court accurately predicted that, had the preliminary injunction not been issued, more whales would die in the short term, negatively impacting public interest. (42) Sea Shepherd's avowed use of increasingly destructive and dangerous means for stopping vessels in the AWS contradicted its contention that it was not attempting to endanger whaling vessels, and that a preliminary injunction was not appropriate. (43) Moreover, the District Court had acknowledged that issuing the preliminary injunction would not prevent Sea Shepherd from continuing its whale conservation mission as the conservation society could still pursue its agenda in a variety of other ways. (44) Instead of viewing the preliminary injunction from the point of view of the harm done to the whalers, the District Court instead viewed the preliminary injunction with more of a mind to the "good" Sea Shepherd was trying to accomplish--precisely the wrong standard for issuing a preliminary injunction. (45)

As the Ninth Circuit noted, a legitimate legal issue and public policy concern is that pirating activity cannot be relegated to storybook peg-legged plunderers roaming the high seas in order to gain material wealth. (46) Sea Shepherd's acts were violent though not yet destructive, and the fact that some of these acts occurred against the whaler's ships instead of the whalers themselves is an immaterial difference. (47) A plain reading of the internationally agreed upon definitions of pirating found in UNCLOS and SUA, the "private ends" requirement of pirating, includes those ends of a personal nature, including private conservation efforts. (48) The District Court disregarded the language in UNCLOS and SUA defining pirating because it could not reconcile the environmental barbarism of whaling with the international authorization to do so. (49) The Ninth Circuit appropriately saw through the District Court's sleight of hand in attempting to label Sea Shepherd's behavior as malicious mischief instead of violent action. (50)

Despite its precise analysis of the District Court's mishandling of international comity concerns, the Ninth Circuit erred in its own conclusion concerning the international comity issue. (51) The Court recognized that enforcing the Australian injunction concerning whaling in the AWS would have constituted judicial overreach into recognizing foreign territorial claims which the United States government had not recognized. (52) What the Ninth Circuit failed to appreciate was that the District Court was using international comity as a veil to justify de facto enforcement of the IWC by permitting Sea Shepherd to continue its behavior. (53) When the District Court suggested Sea Shepherd's mission ultimately served the public good, the District Court could not reconcile its own position with the fact that the activities of the Japanese whalers were authorized and in compliance with the IWC, of which the United States is a member. (54) By simply addressing Australia's jurisdiction with respect to inapplicable international comity concerns, the Ninth Circuit missed a critical opportunity to prevent other district courts from taking it upon themselves to act as "hall monitors" for non-binding international treaties. (55) A complete treatment of international comity by the Ninth Circuit would have reconciled the District Court's well-intentioned but misguided public policy stance, because granting injunction against Sea Shepherd would have highlighted a critical flaws in poorly drafted, unenforceable international treaties. (56)

The Ninth Circuit correctly reversed the District Court's inconsistent and poorly reasoned decision to deny the Institute a preliminary injunction against Sea Shepherd, but its focus on ATS piracy claims bypassed a critical error the District Court made regarding international comity. Federal courts should not serve as the enforcement arm of nonbinding international treaties. The Ninth Circuit's issuance of the preliminary injunction may anger environmentalists in the short-term, but it is worth the anger to prevent the district courts from using international comity to substitute for oversights by IWC members, excuse the actions of Sea Shepherd, and giving jurisdictional credence to Australia's unrecognized AWS territorial claim. (57) U.S. wildlife conservation efforts require serious consideration and solutions from a more active legislature in order to help construct more effective enforcement mechanisms for international conservation treaties. The District Court failed to understand that such long-term solutions are not found through acquiescing to self-fashioned eco-pirates willing to harm humans to save whales. (58)

(1.) See CTV.ca News Staff, Sealing Activists Bailed Out With a Bag of Toonies, (April 14, 2008), http://www.ctvnews.ca/sealing-activists-bailed-out-with-bag-oftoonies-1.289041; Captain Paul Watson, Fears, Cheers, Jeers, and Loathing for Sea Shepherd in South Park, (Nov. 3, 2009), http://www.seashepherd.org/news-and-media/ 2009/1 l/03/fears-jeers-cheers-and-loathing-for-sea-shepherd-in-south-park-288.

(2.) See Environmental News Service, Sea Shepherd Seeks Dutch Prosecution of Japanese Whalers, (Mar. 21, 2013), http://ens-newswire.com/2013/03/21/sea-shepherdseeks-dutch-prosecution-of- japanesewhalers; Ninth Circuit Court of Appeals Hands Down Ruling in Favor of Japanese Whale Poachers, (February 27, 2013), http://www. seashepherd.org/news-and-media/2013/02/27/ninth-circuit-court-of-appeals-handsdown-ruling-in-favor-of-japanese- whalepoachers-1491.

(3.) 708 F.3d 1099 (9th Cir. 2013).

(4.) Id. at 1101; see Inst, of Cetacean Research v. Sea Shepherd Conservation Society, 860 F. Supp. 2d. 1216 (W.D. Wash. 2012).

(5.) Id. at 1101-02; see Ofer Grosskopf & Barak Medina, Remedies for Wrongfully-Issued Preliminary Injunctions: The Case for Disgorgement of Profits, 32 Seattle U. L. Rev. 903 (2009) (explaining preliminary injunctions). Preliminary injunctions are pre-trial court orders which assign the movant a legal entitlement to stop the defendant from acting in a certain manner. Id. at 905. One consideration for issuing preliminary injunctions should be whether issuance of the order would prevent more irreparable social harms than the failure to issue such order. Id. at 904. Courts are typically reluctant to issue preliminary injunctions because they know such orders could very well be proved wrong. Id.

(6.) Inst, of Cetacean Research, 860 F. Supp. 2d at 1220 (identifying international attempts to regulate whaling). The International Convention for the Regulation of Whaling (Whaling Convention) was established in 1946 in order to conserve whale stock and regulate the development of future whaling activities "without causing widespread economic and nutritional distress." Int'l Conv. For the Regulation of Whaling, Preamble, Dec. 2,1946, 62 Stat. 1716,161 U.N.T.S. 72., http://iwc.int/cache/ downloads/lr2jdhu5xtuswws0ocw04wgcw/convention.pdf.

(7.) Reuben B. Ackerman, Note, Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of "Scientific Research, " Culture, and Tradition, 25 B.C. Int'l & Comp. L. Rf.v. 323, 329 (2002) (identifying provision Japanese whalers have used to circumvent IWC's prohibition). Japan has claimed that its scientific research primarily concerns further understanding the consumption habits and ecological roles of whales who feed on the same fish species as humans do. Id. at 330; see International Whaling Commission [IWC], Scientific Permit Whaling, (2013) http://iwc.int/permits (explaining internationally accepted protocol for scientific whaling). The IWC states that it condemns the actions of Sea Shepherd as their actions pose a dangerous risk to human life and property. Id.

(8.) See Inst, of Cetacean Research, 708 F.3d at 1105 (noting Australian judgment addressed the Institute's activities but not Sea Shepherd's). Recognition of Australia's injunction against the Institute would stand against the stated position of the United States Executive Branch, which does not recognize Australia's sovereignty of the area in question. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1221 (illustrating attempts by international community to provide enforcement mechanism against Japanese whalers). The Japanese whalers have not participated in any of the proceedings brought against them for hunting in Australia's AWS. Id. at 1222. Australia's claim to the territory included in the AWS is disputed internationally and is only recognized by the United Kingdom, France, Norway, and New Zealand. Id. at 1221; see Humane Society International v. Kyodo Senpaku Kaisha Ltd. [2008] FCA 3, available at http://www.iilj.org/courses/documents/HumaneSocietyvs.Kyodo.pdf.

(9.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1221 (explaining impact of AWS on Japanese whaling activities thus far). Australia is currently in the early stages, however, of attempting to enforce its self-generated jurisdiction by suing Japan in the International Court of Justice (ICJ) for violation of the Whaling Convention. Id. at 1221-22.

(10.) Andrew Hoek, Sea Shepherd Conservation Society v. Japanese Whalers, the Showdown: Who Is the Real Villain?, 3 Stan. J. Animal L. & Pol'y 159, 169 (2010) (listing some whale species Japan issues permits to hunt). All of the species which are hunted by the Japanese whalers are listed as endangered by the U.S. Fish and Wildlife Service. See id.

(11.) Inst, of Cetacean Research, 708 F.3d at 1101 (noting IWC specifically authorizes hunting in accordance with research permits). If a member of the IWC has issued a research permit from the appropriate government entity, then whaling is legally permitted and not in violation of the IWC. Id.

(12.) Inst, of Cetacean Research, 860 F. Supp. 2d at 1220-21. Captain Paul Watson, a "lifelong defender of the whales and all creatures of the seas," claims that Sea Shepherd has "boarded more ships, rammed more ships, engaged in more high seas confrontations and sunk more ships than the Canadian Navy." Who We Are, Captain Paul Watson's Biography, http://www.seashepherd.org/who-we-are/captain-watsonsbiography. html (last visited Apr. 7, 2013); Who We Are, Master and Commander (2012), http://www.seashepherd.org/who-we-are/master-and-commander.html.

(13.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1222 (providing list of most frequently involved ships). This is not an exhaustive list of vessels which have been involved in altercations or which have suffered damages. See Inst, of Cetacean Research, 708 F.3d 1099 at Appendix A.

(14.) Inst, of Cetacean Research, 860 F. Supp. 2d at 1222 (noting nationalities of vessels). Sea Shepherd has previously crewed its expeditions with citizens from the following countries: Australia, United States of America, Canada, United Kingdom, South Africa, Sweden, Bermuda, German, the Netherlands, Hungary, New Zealand, and Japan. Ships' Crews, Sea Shepherd Crew, http://www.seashepherd.org/who-weare/ships-crews. html (last visited Apr. 7, 2013).

(15.) See Inst, of Cetacean Research, 708 F.3d at 1101 (discussing most dangerous tactics Sea Shepherd Conservation Society has admitted to implementing). Sea Shepherd Conservation Society has also begun reinforcing their ropes with metal wiring in order to better destroy rudders and propellers. See generally Inst, of Cetacean Research 860 F. Supp. 2d at 1223-24 (detailing Defendant's attack methods and Plaintiffs countermeasures). Typical altercations between the Defendant and the Plaintiff start with Sea Shepherd trying to "hunt down'- the whalers, and then, once finding the whalers, frustrating their attempts to get away. Id.

(16.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1223-24 (noting damage to whaling vessel's rudder and stem of Sea Shepherd vessel).

(17.) Id. at 1224 (noting also Defendant's claims that Plaintiff has thrown nuts and bolts onto Sea Shepherd vessels).

(18.) Id. (citing incidents occurring in one year span). In both February 2009 and February 2010, one of the whaling pursuit ships and one of the defendant's Dutch-flagged vessels collided. Id. In January 2010, the plaintiff's "disruption" vessel and the defendant's smaller-type Australian flagged ship collided, tearing off several feet of the defendant's ship's stem, which may have ultimately lead to its sinking. Id.

(19.) See id. at 1226 (noting Plaintiff's sufficient pleading of only two claims). Courts vary in their definitions of international piracy as it pertains to ATS piracy claims, with some United States jurisdictions focusing on the critical element of "sea robbery" and other courts explaining piracy as "any illegal acts of violence or detention [committed for private ends.]" See United States v. Said, 757 F. Supp. 2d 554, 559 (E.D. Va. 2010); United States v. Hasan, 747 F. Supp. 2d 599, 619 (E.D. Va. 2010). Navigation claims require unlawful and intentional acts which endanger the safe navigation of a ship, acts which cause damage to a ship or its cargo or place on a ship a device or substance which is like to cause damage to that ship. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1233-34. Admiralty claims in the international context are typically handled through the Lauritzen factors, although they are not all encompassing. See Lauritzen v. Larson, 345 U.S. 571 (1953) (explaining key considerations when weighing admiralty claims). The court dismissed the admiralty law claims out of hand because they chose to give "cardinal importance" to the flag of the Sea Shepherd vessels, none of which sail under a United States flag but some which apparently are owned by United States organization. Inst. Of Cetacean Research, 860 F. Supp. 2d at 1237. The civil conspiracy claim was insufficiently plead as it merely noted that the Sea Shepherd receives funding for its activities in the AWS from its Washington state headquarters. Id.

(20.) See Inst, of Cetacean Research, 708 F.3d at 1106 (noting reassignment of case to random district court judge). The Ninth Circuit stated that the frequency and significance of the District Court judge's errors necessitated reassignment of the case to a different judge; see Inst, of Cetacean Research, 860 F. Supp. 2d at 1246 (explaining basis for lower court's reasoning). The District Court held that the Plaintiff only sufficiently invoked their claims concerning the freedom of navigation and freedom from piracy, and the court stated it would not "enforce international law to quell ... a dispute that arises from an international political controversy." Id.

(21.) See Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004) (establishing standard for adjudicating ATS claims in district courts). Sosa emphasized that violations of the law of nations should "rest on a norm of international character accepted by the civilized world." Id. at 725.

(22.) Id. at 725; see Inst, of Cetacean Research, 860 F. Supp. 2d at 1232 (noting recent examples of courts analyzing piracy claims and international law norms). United States v. Hasan, 747 F. Supp. 2d 599, 623 (E.D. Va. 2010) and United States v. Said, 757 F. Supp. 2d 554, 563-66 (E.D. Va. 2010) both demonstrate the problem that definitions of international piracy remain muddled and increasingly outdated as different courts in the same circuit which have disagreed on whether the United Nations Convention on the Law of the Sea establishes international norms against piracy. Id.

(23.) See Sosa v. Alvarez-Machain, 542 U.S. at 732 (stating requirements for ATS violations). ATS violations must be considered specific (definable), universal, and obligatory in order to amount to international law norms. See Inst. of Cetacean Research, 860 F. Supp. 2d at 1229 (noting United States' relationship to treaties cited by Plaintiff) The Plaintiff submitted that international norms were established by the United Nations Convention on the Law of the Sea (UNCLOS), Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), International Regulations for Preventing Collisions at Sea (COLREGS), and the High Seas Convention, of which the United States has completely ratified the first three and ratified in all relevant parts the last. See id. at 1231. See Bradford Mank, Can Plaintiffs Use Multinational Environmental Treaties as Customary International Law to Sue Under the Alien Tort Statute?, 2007 Utah L. Rev. 1085, 1086 (2007) (describing which international documents may comprise recognized international law). Though the United States never ratified UNCLOS, it has accepted UNCLOS as representative of international law and is sufficient to bring ATS claims in the United States district courts. Id.

(24.) See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (representing increase likelihood of harm required). The former standard for granting a preliminary injunction required only a showing of a "possibility" of irreparable harm. Id. at 22; see Golden Gate Rest. Ass'n v. City and Cnty. of San Francisco, 512 F.3d 1112, 1126-27 (9th Cir. 2003) (noting relationship between established law and public interest). In cases where established law addresses the appropriate level of deference to a public interest, that law is binding. Id.; see 16 U.S.C. [section][section] 1372, 916c (describing Congressional acts addressing public interest and protecting marine wildlife). The Whaling Convention Act and Marine Mammal Protection Act, respectively, address and allow for actions and scientific permits like those issued to the Plaintiff. Id.

(25.) See U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1944); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, art. 3, Mar. 10, 1988, S. Treaty Doc. No. 101-1, 1678 U.N.T.S. 222; Convention on the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, S. Treaty Doc. No. 93-23, 1050 U.N.T.S. 18. The Ninth Circuit held that the District Court correctly interpreted COLREGS as establishing international norms for maritime rules of the high seas. Id. at 1103-04; see also supra note 22 (noting piracy's modern day definitional problems); see also United States v. Abdi Wali Dire, 680 F.3d 446 (4th Cir. 2012) (trying to reconcile multiple piracy definitions in U.S. and international law). Fundamentally, piracy occurs when one perpetrates violence on the high seas for private ends. Abdi Wali Dire, 680 F.3d at 451. Congress' recent enactment of 18 U.S.C. [section] 1651 indicated that further development of piracy law would occur in the international law context, and Congress left the federal district courts with the power to interpret such developments. Id. at 460. Treaties are considered appropriate evidence of international law customs when an overwhelming majority of States have ratified a treaty and the signatories act in accordance with the treaty's terms. Id. at 461.

(26.) See Abdi Wali Dire, 680 F.3d at 463 (indicating that federal courts must monitor any increasing acceptance of international treaties). While federal common law does not exist, there is a push among district courts and foreign judicial bodies to establish a "universal jurisdiction" through substantive uniformity in the laws currently in existence among nations. Id.

(27.) U.N. Convention on the Law of the Sea art. 101, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397. Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft,

(i) on the high seas, against another ship or aircraft, or against persons or property on board 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 in subparagraph (a) or (b).

See Cour de Cassation [Cass.J [Court of Cassation] Castle John v. NV Mabeco, Dec. 19, 1986, Pas, 77 l.L.R. 537 (Belg.) (holding environmental activism does comprise private end); see also Inst, for Cetacean Research, 708 F.3d at 1103-04 (explaining relation of COLREGS to SUA and UNCLOS). COLREGS set out "rules of the road" for maritime vessels and has been adopted by well over one hundred countries, including the United States, Japan, Australia, and the Netherlands, whereas SUA but not UNCLOS contains the United States as a signatory member, see Convention on the International Regulations for Preventing Collisions at Sea, International Marl time Organization (Oct. 20,1972), http://www.mar.ist.utl.pt/mventura/Projecto-Navios- I/IMOConventions%20(copies)/COLREG-1972.pdf (noting each member country's incorporation of COLREGS through their respective administrative bodies)

(28.) See SUA Convention, 2005 Protocol, art. III, opened for signature Oct. 14, 2005, S. Treaty Doc. No. 110-8, 1678 U.N.T.S. 222 (expanding list of actions which violate safe navigation of ships). This protocol adopted a broader range of actionable offenses while also maintaining that wartime actions or nuclear testing does not constitute violations of safe navigation. Id.

(29.) Id. (reiterating punishable actions with further emphasis on terrorist acts). SUA recognized an increase in terrorist acts occurring at sea and therefore wished to give more jurisdictional power to SUA signatory members who wished to stop it. Id. at [paragraph] 3.

(30.) See generally Lauritzen v. Larson, 345 U.S. 571 (1953) (creating non-exhaustive factors for determining violations of admiralty law). Tort claims under admiralty

law have also considered the ship owner's base of operations, which would be Washington state for the case at bar. See Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970).

(31.) See Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984) (pointing out infrequency of domestic courts deferring to foreign courts); Donald Earl Childress III, Comity as Conflict: Resituated International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11-13 (describing comity's role in legal theory and actual law). Comity alternates between existing as a legal justification and, at other times, merely a judicial acknowledgment. See id.; Michael D. Ramsey, Escaping "International Comity", 83 Iowa L. Rev. 893 (1998) (noting foreign judgment situations when United States courts will generally use international comity). International comity will be considered to prevent relitigation of previously determined facts or applications of law to the facts and as proof of the foreign law's content itself. See id. at 897.

(32.) See Asvesta v. Petroutsas, 580 F.3d 1000, 1011 (9th Cir. 2009) (describing extension of comity as default inclination for major international law treaties or conventions).

(33.) See Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984) (emphasizing reciprocal benefits comity serves as increasing power between foreign jurisdictions). But see Sanchez-Llamas v. Oregon, 548 U.S. 331, 347 (2006) (noting constitutional grounds for recognizing international treaties). If an international treaty does not implicitly or explicitly provide a particular enforcement remedy, the federal courts may not impose one on their own. Sanchez-Llamas, 548 U.S. at 397 (Breyer, J., dissenting) (discussing difficulties of United States adoption of Vienna Convention). Justice Breyer noted that the difficulty of writing enforcement provisions into international treaties, despite the guarantees they would provide for making the treaty "work," lies in the disparity between practical, legal, and political interests. Id.; see Comity can exist in a judicial form and a legislative form and that legislative, or "prescriptive comity," occurs when sovereign nations somewhat limit the reach of their own sovereign laws out of respect for other countries. See Sanja Djajic, The Effect of International Court of Justice Decisions on Municipal Courts in the United States: Breard v. Greene, 23 Hastings Int'l & Comp. L. Rev. 27, 95-96 (suggesting comity as means to bridge divide between United States Supreme Court and International Court of Justice). If a non-binding international norm becomes "international enough," then such norm may transcend the level of "comity" and reach a level of true international duty. See Brian Pearce, The Comity Doctrine as a Barrier to Judicial Jurisdiction: A U.S.-E.U. Comparison, 30 Stan. J. Int'l L. 525, 529-30 (portraying international law and comity on different levels of international recognition). A preliminary issue for enforcing foreign judgments and treaties is ensuring that the foreign body's exercise of jurisdiction is consistent with U.S. requirements of personal jurisdiction. Mark D. Rosen, Should "Un-American" Foreign Judgments Be Enforced?, 88 Minn. L. Rev. 783, 831-32 (explaining contemporary enforcement doctrine concerning international comity). International comity often creates unaccounted for problems like compliance costs on parties who must comply with provisions of other countries but not of their own, thereby demonstrating one of several areas where international comity has been "undertheorized" in international law. Id. at 849.

(34.) Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d at 938 (noting court's refusal to enforce United Kingdom injunction which directly interfered with domestic anti-trust lawsuit).

(35.) See Aasvesta v. Petroutsas, 580 F.3d at 1011 (citing Diorinou v. Mezitis, 237 F.3d 133, 143 (2d Cir. 2001)). Where enforcing a foreign judgment has a narrow, discrete impact on a sovereign state's legal system, comity-based decisions involve a "more general reorganization of domestic law." Mark L. Movsesian, Judging International Judgments, 48 Va. J. Int'l L. 65, 116-117 (explaining difference in scope between foreign judgments and comity-based decisions).

(36.) See Inst, of Cetacean Research, 708 F.3d at 1106 (indicating preliminary injunction from the Ninth Circuit's predated order explaining reversal of lower court). The preliminary injunction will remain in order for the duration of the case pending a change in the court's orders. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1233, 1242, 1246 (discussing additional minor grounds for denying preliminary injunction). The District Court denied the Plaintiff's motion for a preliminary injunction on the grounds of international comity, lack of irreparable harm to the plaintiff, and unclean hands on the part of the plaintiff. Id. The district court stated that "public interest weighs against issuing an injunction in this case [because] more whales would die." Id. at 1244. Furthermore, the court emphasized that Sea Shepherd Conservation Society could not satisfy the balance of hardships consideration for a preliminary injunction because a preliminary injunction would not prevent them from "[protecting the] Southern Ocean whales without engaging in the tactics over which the whalers have sued." Id.

(37.) See Inst, of Cetacean Researchers, 708 F.3d at 1103-04 (discussing issue of irreparable harm in Eighth Amendment case). In Helling v. McKinney, 509 U.S. 25, 33 (1993), the Supreme Court held that the Ninth Circuit correctly recognized that a remedy for unsafe conditions should not have to wait for a tragic event to occur. See id.; Inst, of Cetacean Researchers, 860 F. Supp. 2d at 1243 (explaining tension regarding Sea Shepherd Conservation Society's actions). The District Court found that just because injury was possible does not make it likely that injury would occur. Id. Relying on Winter in stating that the court believed that the evidence offered did not prove harm had occurred. Id. The court posited that the most dangerous risk-activity for causing irreparable harm was the hurling of projectiles, hut this did not constitute a violation of international law norms. Id.

(38.) See Inst, of Cetacean Research, 708 F.3d at 1101-03. (relying on plain language of international documents and commonly accepted definitions). The Ninth Circuit claimed that it would afford words their common meaning unless context demanded otherwise. Id. The district court's disregard of UNCLOS' language mirrored its disregard of SUA (held as establishing international norms regarding freedom of safe maritime navigation but not international norms for piracy) in that Sea Shepherd Conservation Society's actions did not comprise unlawful, intentional acts that endanger the safe navigation of a ship. Id.

(39.) Id. at 1105.; see Inst, of Cetacean Research, 860 F. Supp. 2d at 1244-45 (summarizing unlikelihood of success on Plaintiff's claims while rejecting Defendant's procedure-based defenses). The Defendant unsuccessfully pled a forum non conveniens defense, failing to show an adequate alternative forum and there was an interest in dismissal. Id. at 1238. The district court held that it would not dismiss the Plaintiffs claim based on the defense that the Plaintiff was asking to adjudicate a political question; the court reasoned that it was merely there to determine the lawfulness of Sea Shepherd Conservation Society's actions. Id. at 1241. The hunting occurring in the AWS provided Sea Shepherd Conservation Society with a clean hands defense relating only to that ocean area, and the United States' public interest in preservation of whales weighed against issuing the preliminary injunction. Id. at 1242, 1246.

(40.) Inst, of Cetacean Research, 708 F.3d at 1105 (explaining neither United States nor Japan recognizes AWS). The Ninth Circuit further stated that the rights of safe navigation for the whalers are not earned, but rather "flow" inherently from international law sources. Id. at 1105-06. Considerations of international comity required recognizing Australia's court proceedings with respect to the AWS and thereby finding the whalers' hunting in violation of international law. Id.

(41.) See Inst, of Cetacean Research, 708 F.3d at 1101-02 (clarifying relationship between preliminary injunction claim and ATS piracy claim). The Ninth Circuit was permitted to review the dismissed ATS piracy claims because the District Court's reasoning for dismissing such claims was inherently connected with its reasoning for denying the preliminary injunction. 708 F.3d at 1101. As a threshold matter, the ATS was correctly understood as allowing for preliminary injunction in terms of available remedies when subject matter jurisdiction existed. Id.

(42.) See supra note 37 (reflecting each court's separate reasoning on issue of harm within preliminary injunctions).

(43.) See supra note 15 (detailing Sea Shepherd's efforts to stop Japanese whalers through violent and destructive means).

(44.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1244 (reasoning issuing preliminary injunction would not harm Sea Shepherd and still allow it to continue its mission).

(45.) See generally Inst, of Cetacean Research, 708 F.3d 1099 (clarifying Ninth Circuit's reasoning for nearly complete reversal of all district court findings). The Ninth Circuit stated it should have no say regarding the political and environmental issues concerning whaling. 708 F.3d at 1104. Instead, the Ninth Circuit reiterated the established United States interest in enjoining, or preventing, piracy. Id.; see Inst, of Cetacean Research, 860 F. Supp. 2d at 1244 (recognizing public interest favors right of ships and crew to freely travel). The District Court admitted that their decision would be of "little comfort" to a whaler struck, burned, or injured by ship collision, and that it was partly a matter of luck that had kept the whalers safe during Sea Shepherd's eight seasons of anti-whaling efforts. 860 F. Supp. 2d. at 1246.

(46.) See supra note 27 (expanding understanding of private ends requirement for pirating acts).

(47.) See Inst, of Cetacean Research, 708 F.3d at 1103 (finding endangering sufficient act to warrant ATS pirating under SUA convention).

(48.) See supra note 38; see also Inst, of Cetacean Research, 860 F. Supp. 2d at 1236 (noting Defendant's position that it acts as "private coast guard" for AWS).

(49.) See Inst, of Cetacean Research, 708 F.3d at 1106 (Smith, J., dissenting in part). Judge Smith concurred with Chief Judge Kozinski on all matters of law but dissented to state that he did not think the case needed to be reassigned to a different district court judge on the basis of judicial bias. Id.

(50.) See supra note 16 and accompanying text (illustrating District Court's mischaracterization of Sea Shepherd's actions). Instead of recognizing the acts as violent, the court referred to them as acts which do not target people. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1233. However, it is clear that such acts as using high powered lasers and glass bottles filled with acid are clearly intended for use against people. See supra note 16.

(51.) See supra note 33 (reflecting on allowing preliminary injunction and subsequent impact on international law and comity). The District Court expressed concern that if it issued the preliminary injunction, it did not believe it would be able to directly enforce it. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1240.

(52.) See supra note 8 (explaining recognition of AWS and any consequential policy concerns purview of Executive Branch).

(53.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1244-45 (suggesting court should leave legal dispute of AWS whaling to ICJ). The District Court proclaimed, however, that international comity demand that they recognize the Australian court's injunction, which eliminated the legal dispute altogether. Id. at 1242 (reprimanding Plaintiff for seeking adjudication in U.S. courts when disregarding Australian court's injunction); see supra note 8 (noting Australia's AWS claim as unrecognized throughout vast majority of international community). The District Court claimed that it simply could not extend the relief sought by the whalers because to do so would enforce and settle a dispute in international political controversy as well as settling a dispute between people from different countries. See Inst, of Cetacean Research, 860 F. Supp. 2d at 1246 (noting nations have chosen not to directly tackle IWC research loophole). Despite declaring that whaling is the subject of worldwide condemnation, every IWC signatory country with an interest in this case had chosen not to get involved in the Sea Shepherd dispute, and the district court acted as a stand-in for the IWC when the international community refused to stand up. Id. at 1240-41.

(54.) See Inst, of Cetacean Research, 860 F. Supp. 2d at 1244 (claiming United States public policy regarding whaling no different from most other nations); see supra note 7 (alerting international community that IWC condemns Sea Shepherd's dangerous activities and demands they stop).

(55.) See supra note 33 (explaining difficulty federal district courts have in interpreting international treaties).

(56.) See supra note 6 (noting fundamental purpose of IWC as protecting long-term whale conservation and regulation of international whaling).

(57.) See generally Inst, of Cetacean Research, 860 F. Supp. 2d at 1246 (portraying relief sought by Plaintiff as extraordinary because no country had previously enjoined Defendant). Although the court explicitly stated that it did not condone the tactics Sea Shepherd used against the whalers, it mangled its analysis of Sea Shepherd's involvement on the international stage. Id.

(58.) See Eco-Pirate: The Story of Paul Watson (Nov. 10, 2011) (following life of Sea Shepherd founder and master and commander of fleet). The documentary trailer poses the colorful, telling question, "What if one man took the law into his own hands?" Eco-Pirate: The Story of Paul Watson, IMDB, http://www.imdb.com/title/tt1794779/.
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Author:Keefe, Ryan A.
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2013
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