On February 25th, the Court of Appeals for the 9th Circuit reversed a district court’s order denying the Japanese whaling fleet’s preliminary injunction and dismissing its piracy claims. The Institute of Cetacean Research kills thousands of whales every year in the Southern Ocean under the pre-textual guise of “research,” despite the uncontested fact that the whale meat is sold for human consumption. Despite a moratorium on whaling, the International Convention for the Regulation of Whaling allows its member nations to issue whaling permits for research purposes. The Sea Shepherd Conservation Society, lead by ex-Greenpeace member Paul Watson, operates a number of vessels whose purpose is to disrupt the whaling efforts of the Japanese fleet. Sea Shepherd employs tactics such as disabling boat propellers, firing smoke canisters at whaler decks, and ramming whaling vessels. Sea Shepherd justifies its actions by arguing that no government will enforce the whaling moratorium, therefore they are doing so on behalf of the whales. This struggle is the subject of the Discovery channel television show, Whale Wars.
Despite the 9th Circuit’s liberal reputation, it has consistently ruled in favor of the Japanese whaling fleet. In 2004, the 9th Circuit held that whales did not have standing to sue under the Endangered Species Act. See Cetacean Comm. V. Bush, 386 F.3d 1169 (9th Cir. 2004). In its latest decision, Chief Judge Kozinski focused on the terms “violence” and “private ends,” as used to define “piracy” under UNCLOS art. 101. It appears as though J. Kozinski went out of his way to define “private ends” in a way that would be dispositive in favor of the Cetacean. He begins by stating that acts taken for “private ends” are those that are not taken on behalf of a state. First, his authority for this proposition is an article in a legal periodical about Somalian pirates who kidnap and murder people. Second, the definition itself is erroneous because it completely ignores the plain and ordinary meaning of “private,” which is often construed as the antonym to “public.” Furthermore, the “rich history” that Kozinski relies upon is really quite bare. Kozinski cites a twenty-five year old case from Belgium as his only authority to the proposition that environmental activism qualifies as a private end. If there was not a single U.S. case that supported this proposition, then perhaps it was time to analyze this legal issue from a slightly more neutral standpoint.
It is usually in poor taste to criticize a judge’s motives, especially one as universally respected as Kozinski. However, he certainly opens the door to speculation with the first paragraph of his opinion. “You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.” Keep in mind there has been no trial, and therefore there is no factual record upon which Kozinski bases his these statements. He then goes on to defend the Japanese whalers by 1) stating that they conduct their whaling in “compliance” with the whaling moratorium, and 2) concluding that Sea Shepherd has “hounded” them for years despite their complete innocence. If Kozinski is going to enter facts not in the record, he could at least include facts not favorable to the moving party, such as the fact that those permits are supposed to be for research only and Cetacean clearly sells their whale meat for commercial purposes. I am not arguing that those facts would be dispositive either way, but it might help at least create the appearance of impartiality.