MALEN NOUSARI—In reaction to perceived global failures in marine conservation, Paul Watson founded The Sea Shepherd Conservation Society (Sea Shepherd), a non-profit organization with a mission to “protect and conserve the world’s oceans and marine wildlife.” Initially, Sea Shepherd used aggressive, direct tactics, such as ramming ships and using smoke bombs, to stop illicit high-seas fishing practices. Notable accomplishments included saving more than 6,000 whales from Japanese harpoon ships. Their actions reduced marine crimes and increased public awareness of maritime conservation—the presence of Sea Shepherd boats resulted in Japan catching only 19.1% of their self-appointed whale quota between 2010 and 2011. However, Sea Shepherd’s tactics were criticized. Canadian indigenous communities claimed that Sea Shepherd’s anti-sealing campaign endangered their cultural traditions; a U.S. Court branded Sea Shepherd as “pirates;” and the International Whaling Commission denounced Sea Shepherd for jeopardizing maritime safety after clashes with Japanese vessels.
After Peter Hammarstedt became director of campaigns and the board of directors voted to dismiss Watson, Sea Shepherd began to embrace its pivot from being a “vigilante group to a partner of government authorities.” Sea Shepherd collaborates with national coast guards in nations like Peru, Gabon, and Liberia to conduct cargo hold inspections and monitor marine life fishing. However, some members worried that working with nations linked to irresponsible fishing or whaling practices could result in greenwashing and jeopardize the group’s legitimacy. As a result of this ideological change, Watson resigned and founded the Captain Paul Watson Foundation and Sea Shepherd Origins. Sea Shepherd branches in the U.K., Brazil, and France followed Watson. This schism in ideology within Sea Shepherd raises questions about the boundaries of direct action under international law and the consequences for non-state actors engaging in these activities.
The United Nations Convention on the Law of the Sea (UNCLOS) defines acts of piracy as “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 . . . , and directed: . . . on the high seas, against another ship, or against persons or property on board such ship . . . .” Despite asserting that it adhered to international maritime law, Sea Shepherd found itself in the courtroom for using aggressive tactics. In Institute of Cetacean Research v. Sea Shepherd Conservation Society, the Ninth Circuit found that Sea Shepherd’s direct tactics qualified as piracy under UNCLOS. While some argued that marine activism should not be considered “private ends,” the Ninth Circuit disagreed:
“[Y]ou 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.”
Although Sea Shepherd’s past tactics were considered piracy, their current collaborative initiatives adhere to international maritime law. UNCLOS grants coastal states sovereignty up to twelve nautical miles (nm) from shore—known as their territorial waters. Coastal states also have the power to enforce mineral rights and fisheries regulations within their Exclusive Economic Zone (EEZ), which extends 200 nm from the shore. With proper authorization, Sea Shepherd could lawfully board and detain vessels involved in illicit fishing within these zones. For example, in 2016, Sea Shepherd and the Gabonese government collaborated on Operation Albacore VI, which resulted in the seizure of five ships and two trawlers. Through collaboration, Sea Shepherd not only gains legal authority to operate in these zones but also secures a platform to advocate for certain policy decisions.
What actions can Sea Shepherd take on the high seas beyond the EEZ? Article 110 permits a warship to board a foreign vessel if there is reasonable suspicion of piracy, slave trade, unauthorized broadcasting, lack of nationality, or refusal to display its flag. This right of visit is also granted to “duly authorized ships . . . unmistakably marked as being on government service.” Thus, if the coastal state “duly authorizes” Sea Shepherd, it could obtain the right to board foreign vessels for the reasons aforementioned. This practice is not unprecedented. Historically, a letter of marque authorized privately owned ships to engage with enemy vessels. This custom originated in 1243 when King Henry III of England employed privateers against his enemies. In the United States, Congress authorized privateers to seize British warships and other vessels that aided Britain during the American Revolution. In 1776, Congress codified privateering into the Articles of Confederation. Subsequent U.S. case law aligned privateering with international law by reinforcing the privateer’s accountability to the federal government. Notably, Congressional authority to issue letters of marque has never been repealed.
While practices like whaling or shark finning may be undesirable, they do not inherently violate international law. Nonetheless, by using its connections with coastal states and advocating for particular legislative changes, Sea Shepherd may be able to extend its operations to the high seas. This process would involve several steps:
- First, the coastal state would need to enact legislation akin to 14 USC § 522, which would give a maritime law enforcement agency the power to investigate, search, and seize covered vessels on the high seas to prevent and suppress violations of its laws.
- Second, after passing such legislation, the coastal state would need to criminalize the targeted actions, such as banning whaling practices.
- Third, if not already in place, the coastal state would implement a letter of marque authority.
Under this framework, Sea Shepherd could be deputized by the coastal state to detect and address violations of the coastal state’s laws on the high seas— this would only apply to vessels subject to the coastal state’s jurisdiction and stateless vessels as recognized under UNCLOS Article 110(1)(e). While challenges remain regarding the ability to target foreign vessels engaging in these practices on the high seas, this proposed strategy allows Sea Shepherd to lawfully pursue marine conservation to a limited degree on the high seas.
