Russia has accused Greenpeace activists of piracy! Greepeace activists attempted to stage a protest at a Russian oil rig in the Arctic; they were foiled in their attempt by Russian border troops, who ended up seizing the activist group’s ship and its crew of 30 sailors and activists. Russian authorities opened a criminal investigation into the matter, claiming that piracy may have been committed by Greenpeace. No formal charges against Greenpeace activists have been filed yet but under Russian law, the charge of piracy carries a sentence of between five and fifteen years. According to Maria Favorskaya, Greenpeace spokesperson, the charge of piracy is “absurd.” Favorskaya seemed dismayed: “How can peaceful activists who simply tried to put up a poster on the side of an oil drilling platform be accused of such a serious felony?” Finally, Favorskaya claimed that Russians had illegally seized and towed the Greenpeace vessel, because it was allegedly sailing in international waters. Russian authorities claim, on the other hand, that the vessel had been sailing within the Russian exclusive economic zone (the EEZ extends 200 miles off the Russian coast) when it was boarded and seized.
Could this Greenpeace protest – seemingly peaceful – constitute an act of piracy under international law? No, because the activists did not act against another vessel. The customary law definition of piracy found in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) requires the presence of two vessels: the aggressor and the victim vessels. Here, Greenpeace activists attempted to stage a protest on an oil platform. Had Greenpeace activists acted against a Russian ship, arguably their acts could have constituted piracy, provided that other criteria of Article 101 had been satisfied.
Let’s assume that Greenpeace activists had actually staged a protest against a Russian ship. Could their acts then constitute piracy under international law? The first factor to examine here is where the act of protest staged by Greenpeace took place. Article 101 requires that the act of piracy be committed on the high seas or international waters. Greenpeace claimed in this incident that its vessel acted in such international waters, whereas Russian authorities maintained that the vessel had been sailing within the Russian EEZ. UNCLOS defines the high seas as any body of water beyond the 12-nautical-mile territorial sea of the coastal states; thus, waters that constitute the Russian EEZ actually qualify as the “high seas” for the purposes of piracy law. Thus, Greenpeace acts committed within the Russian EEZ against a Russian ship could qualify as piracy, as long as they were committed outside the Russian 12-mile territorial sea. The second issue to ponder here is whether activists such as those associated with Greenpeace act for “private ends.” Article 101 of UNCLOS requires that piratical acts be committed for purely private ends, because UNCLOS conceives of piracy as robbery on the high seas. One could argue that activists such as Greenpeace, acting for non-monetary or political ends, cannot be viewed as satisfying the private ends requirement. However, as I have blogged before, the 9th Circuit recently found in Cetacean v. Sea Shepherds that a marine conservationist organization, the Sea Shepherds, could be acting for private ends for the purposes of international law on piracy, as long they were not acting on behalf of a government. The 9th Circuit thus conceived of the private ends requirement as that which distinguishes between entities operating on behalf of government and thus for public ends, and those not operating on behalf of governments, and thus for private ends. Scholars disagreed on the 9th Circuit finding, with Eugene Kontorovich and Jon Bellish agreeing with the court and Kevin Jon Heller and yours truly disagreeing. The point I am trying to make here is that if Sea Shepherds can be considered pirates under international law, so can Greenpeace activists. The charge of piracy may not be as absurd as Greenpeace claims.