Kontorovich on Why Greenpeace Activists Are Not Pirates

I posted a little while back about Greenpeace's boarding of a Russian oil platform and the subsequent arrest of the activists.  Today, at the Volokh Conspiracy, Eugene Kontorovich posted about the issue.  I suspect that he had received numerous emails following his analysis of a previous case involving Sea Shepherd, and decided to set the record straight.

I was happy to see that I was correct in my earlier conclusion (it was my first foray into piracy law, after all), although Kontorovich makes a wider variety of arguments to support this conclusion.  He writes:

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106. 

It would appear that Kontorovich is an influential figure indeed.  The BBC reports that Russian President Vladimir Putin mentioned the Greenpeace Activists earlier today:

Mr Putin, speaking at a forum on the Arctic, said: "It is absolutely evident that they are, of course, not pirates."

But the protesters are not safe yet:

A spokesman for Russia's main investigating agency, the Investigative Committee, said the charges might be changed if new evidence emerges.

Maybe the oil platform was actually a ship.  This would be a significant development indeed.