by Jim Rose in economics

Greenpeace is in for a nasty shock if it thinks that the US courts do not have jurisdiction on the high seas.

A US court has no jurisdiction over a Dutch ship (@gp_espy) on the high seas. See tinyurl.com/lcyfwq3 #Legal101 http://t.co/jFxn5l0PVH—

(@Greenpeace) April 09, 2015

The far more rogue Sea Shepherd was scared enough of litigation in the US courts for its leader to stand down and pretend to no longer be involved in its violent attempts to stop whaling. The Japanese whalers were winning injunctions in the US courts against their violent activities. After the court ruling, Paul Watson stepped down from the campaign:

The Court of Appeals entered an injunction that barred Sea Shepherd USA from obstructing any of the Japanese whaling vessels or even coming within 500 yards of their vessels. Sea Shepherd USA is fighting to get the injunction lifted, but while it is pending, Sea Shepherd USA must comply with it.

The US Court of Appeal for the 9th Circuit was quite clear that the Sea Shepherd campaign against Japanese whaling was piracy, and piracy is a crime of universal jurisdiction:

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.

Of course, there is the US Alien Torts Act 1789, which says the following:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Scholars have surmised that the Act was intended to assure foreign governments that the U.S. would act to prevent and provide remedies for breaches of customary international law, especially breaches concerning diplomats and merchants.

Since 1980, courts have interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States.

The Supreme Court held in Sosa v. Alvarez-Machain that the ATS provides a cause of action for violations of international norms that are as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy. Courts have found torture; cruel, inhuman, or degrading treatment; genocide; war crimes; crimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance to be actionable under Alien Torts Act.

Sea Shepherd and Paul Watson were sued by Japanese whalers under the Alien Torts Act. The Japanese whalers alleged that the Sea Shepherd groups had engaged in piracy within the meaning of customary international law, and the Court of Appeal agreed with them.

The US Constitution is quite clear about empowering Congress “To define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations.” as well as regulate foreign commerce.

Originally applied to hold pirates and slave traders accountable for their crimes, the principle of universal jurisdiction today extends to all human rights abusers:

163 of the 193 UN Member States can exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law… No fewer than 166 States have defined at least one of the four crimes upon which universal jurisdiction can be exercised – war crimes, crimes against humanity, genocide, and torture – as crimes in their national law.

Greenpeace and Sea Shepherd had few scruples about seeking a Federal Court of Australia injunction against Japanese whalers operating in international waters who never visited Australia – it’s illegal for whalers to dock in Australia – based on the purported Australian jurisdiction over the Australian Whale Sanctuary in the Antarctic Ocean. Only the United Kingdom, France, Norway, and New Zealand officially recognize this Australian sovereignty in the Southern oceans.

Obviously Greenpeace is happy to engage in international forum shopping in seeking to extend the power of courts, particularly friendly courts to the high seas.