Whaling protesters are behaving like pirates

WHEN Sea Shepherd Conservation Society member Pete Bethune climbed from his jet ski on to Japanese whaling ship the Shonan Maru 2 and presented a demand for money following weeks of hostile encounters between the whalers and Sea Shepherd, the environmental activists finally crossed the line from protesters to pirates. The dramatic and violent encounters that previously have taken place in the waters off Antarctica during Japan's whaling season have rightly given rise to allegations of violating laws relating to the safety of life at sea and failing to show due regard to the rights of other maritime users. Arguments continue to go back and forth as to the legality of Japan's so-called scientific research into whales.

What is clear, legally, is that Sea Shepherd does not have policing powers. As a private organisation it is not entitled to enforce its view that the whaling activities of Japan are illegal. Sea Shepherd members are not entitled to conduct what is known as a right of visit against a Japanese vessel to deliver protest letters (as happened in the previous whaling season) or for a citizen's arrest.
The money makes the difference. In presenting a demand for $3 million to the captain of the Japanese vessel to replace the Ady Gil, which was destroyed following a collision with the Shonan Maru, the Sea Shepherd members battling against the Japanese whalers have become pirates. Under the law of the sea, a pirate is defined as someone who commits an illegal act of violence for private ends (such as money) against another vessel on the high seas.
Bethune admittedly boarded the Shonan Maru under cover of darkness and seemingly presented himself in a peaceful manner to the captain. A peaceful demand for money may not be an act of piracy. It is a difficult case to make, however, when set against the weeks of butter bombs and water cannons. And it is probably an even more difficult argument to sustain when presented to a Japanese court.
It was reported this week that two Greenpeace members are standing trial in Japan for trespass and theft of whale meat. They were attempting to expose the black market for whale meat in Japan and thought prosecutors would go after the whalers for embezzlement. They face 10 years in jail, in a criminal justice system that apparently has a 99.8 per cent conviction rate.
And it is not just Bethune who should be worried. Anyone who intentionally facilitates an act of piracy is also considered a pirate under international law. This affects all the Sea Shepherd members chasing the whalers.
The piracy accusation has been thrown about for some time in discussions about Sea Shepherd. But, for lawyers, what has been rhetoric and media flourish has taken on a whole new meaning.
Natalie Klein is an associate professor at Macquarie Law School and the author of Dispute Settlement in the UN Convention on the Law of the Sea. She served as a member of the Sydney panel of international legal experts advising the International Fund for Animal Welfare on Australia's dispute settlement options against Japan over whaling.