Expert blog: The return of ‘environmental pirates’? Greenpeace v. Shell on the Atlantic Ocean
Greenpeace activists have been accused of piracy after targeting vessels and offshore platforms – but is the label of ‘pirates’ consistent with international law? Nottingham Law School PhD researcher, Laurence Teillet, explores the issue with Ahmad Ali Shariati, PhD student at the University of Sussex.
On 31 January 2023, Greenpeace activists from Argentina, Turkey, the US and the UK boarded a Dutch Boskalis vessel contracted by Shell, transporting floating production storage and offloading (FPSO) to the Penguins oil and gas field in the north-east of the Shetland Islands, in Scotland.
As related by the Financial Times, video footage showed Greenpeace activists in small boats approaching the vessel in a rough sea before climbing the deck using ropes. On board of the FPSO, they raised a banner saying “Stop Drilling. Start Paying”.
Shell declared, following the incident, that Greenpeace’s actions were “causing real safety concerns”. Boskalis added that they were in close contact with Shell to decide what actions to take.
The activists’ activities were received rather positively by the general public. However, one word seems to, often, come back from a more sceptical audience to describe Greenpeace’s operation against Shell: piracy. Indeed, a rapid analysis of Twitter users’ reaction to Greenpeace’s public announcement of their campaign reveals that, between 31 January and 02 February, more than 250 tweets mentioned both the words “Greenpeace” and “piracy” and more than 160 associated “Greenpeace” with “pirates”.
While the comparison can appear sensationalist at first glance, these recent events are not without reminding us of previous Greenpeace campaigns on the high seas and their consequences.
In 1982, Greenpeace’s Warrior chased the Japanese-Peruvian whaling vessel, the Victoria 7, and after boarding small Zodiacs, the activists chained their rafts to the ship’s stern rail. Six other members boarded the Victoria 7 and attached themselves to the harpoon gun. Following their action, the Greenpeace crew was made aware that the Peruvian government was envisaging piracy accusations. However, the prosecutor finally decided to drop the piracy charges.
In 1986, Greenpeace’s opposition to toxic waste dumps in the North Sea led to the first-ever conviction of environmental activists for piracy, the Castle John case. In this case, Greenpeace activists boarded the Belgium-licensed NL Chemicals ship, the Falco, on two occasions, attached themselves to the discharge pipes, painted on windows and threatened to drop anchors. Greenpeace’s ship, the Sirius, was also used to block the passage of Bayer’s ship, the Wadsy Tanker. The Belgian government arrested the activists and seized their ship on the legal ground of piracy. This case marked a deviation from the generally accepted definition of piracy, for society and scholars’ perception of the latter does not match the Belgian Court’s interpretation of the crime. From the 1990s to the 2010s, most research articles agreed that Castle John would remain an isolated exception.
However, in 2013, not only did Sea Shepherd activists get sentenced for piracy for their direct and violent opposition to Japanese whaling in the Antarctic, but Greenpeace protesters, once again, had to face piracy charges. They climbed a Gazprom offshore platform to protest against oil exploitations in the Arctic and were arrested by Russia following accusations of piracy. The charges were dropped afterwards, the actions clearly not amounting to piracy (owing to the absence of the two-ships requirement) but still provided a legal basis for arresting the activists and seizing Greenpeace’s ship.
Therefore, it is not the first time Greenpeace activists have faced accusations of piracy when their actions occur on the seas. However, is this labelling of the protesters as ‘pirates’ for their boarding of the Boskalis vessel consistent with international law?
Piracy is defined, by the United Nations Convention on the Law of the Sea, as “any illegal acts of violence [...] committed for private ends [...] and directed, on the high seas, against another ship or aircraft [...]”. From this definition, five criteria stand out for an act to qualify as piracy: (1) an illegality requirement, (2) any act of violence, (3) a private ends requirement, (4) a geographic limitation (the high seas) and (5) a two-ships requirement.
We can say, without many doubts, that contrary to earlier cases, Greenpeace activists cannot qualify as pirates for their actions against Shell for at least two reasons.
First, if Greenpeace’s act is to be considered piratical, it needs to be illegal. However, under certain circumstances, environmental activism is a protected right – as envisaged , by article 19 of the International Covenant on Civil and Political Rights. How to arbitrate between the said freedom of expression and Shell’s freedom of navigation, for instance? When does direct action, in other words, disruptive activism to obstruct or deter contentious practices opposed by activists, become illegal? The European Court on Human Rights recognised, in its Jersild v. Denmark case of 1994, that freedom of expression protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. This decision paved the way for recognising direct action as legal when the means are proportional to the end.
This precedent was confirmed in numerous cases, particularly the 2003 Eugen Schmidberger v. Austriacase. In this case, environmental activists had blocked the Brenner motorway, a major transit route through the Alps and an essential link between Germany and Italy, to protest against the pollution caused by heavy trucks. The Court ruled that the temporary infringement of transportation companies’ freedom of movement was justified by environmental activists’ freedom of expression, which includes protection of the means used to exercise their right to free speech.
In this case, Greenpeace is not preventing Boskalis’ vessel from carrying out its mission: it only caused a temporary breach of its freedom of movement through the activists’ boarding of the latter to exercise their freedom of expression. The infringement of Boskalis and Shell’s rights was only temporary and stopped as soon as Greenpeace’s action and message were made public.
Second, for an act to qualify as piracy, acts of violence must have occurred. Greenpeace activists simply boarded the vessel and deployed a banner. No rocks were thrown, no threats were formulated, no prop fouler was used – contrary to earlier cases dealing with ‘environmental pirates’. Pirates were historically seen as hostis humani generis, the ‘enemies of all mankind’, because of the severity of their actions, amongst other reasons. Putting Greenpeace activists’ risky but peaceful boarding and banner holding on the same level as theft, abduction, and murder would be nonsensical. It would be criminalising what would be, at a maximum, considered a tort.
The recent opposition between Shell and Greenpeace may trigger new debates around ‘environmental pirates’ after a relative silence since the last cases in 2013. This debate is fascinating and relevant, and it demonstrates the pitfalls of piracy’s current legal definition. Yet, it is obvious that Greenpeace’s latest operation does not fit the latter. ‘Piracy’, especially given that it triggers the potential application of universal jurisdiction, should not be used as a lexical weapon to impede citizens’ right of access to environmental information and activists’ freedom of expression.
Laurence Teillet is a PhD researcher at Nottingham Law School, her thesis is entitled ‘Pirates of compassion': reforming the international law of piracy following violent environmental activists’ prosecutions and convictions
This article was co-authored with Ahmad Ali Shariati, PhD student at the University of Sussex, who is researching States' accountability for GHG emissions emanating from the energy sector in the context of climate justice and energy security
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Expert blog: The return of ‘environmental pirates’? Greenpeace v. Shell on the Atlantic Ocean
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