Wednesday, January 9, 2013

Lawfare and NGO Maritime Actors

In this undated photo released by Sea Shepherd Conservation Society, its new Antarctic patrol ship SSS Sam Simon steams on the sea. (AP Photo/Sea Shepherd Conservation Society, Carolina A. Castro)
On the One Year Anniversary Special of Midrats 2 years ago, CDR Salamander opened his discussion with a question submitted by Admiral James Stavridis that asked what the panel believed would be the next big thing after next (over the horizon) for naval operations. In his answer, Claude Berube discussed the concept of emerging Maritime Shadow Zones which he defined as geographical maritime security gaps where naval power lacks the strength, authority, or interest to enforce maritime security in maritime regions globally. In his description of this potential emerging future, Claude mentioned that it is possible that both legitimate an non-legitimate non-governmental actors would be emerge to fill those voids.

While it wasn't the first time I had been exposed to that concept, his presentation of what a potential future role of the maritime NGO might look like inspired several ideas in my mind, and I admit I have thought about the topic in the way he presented it many times since. Due almost entirely to the his answer that night, I began paying closer attention to the activities of the Sea Sheperd Conservation Society, perhaps the most renowned of the modern legitimate NGOs currently filling the maritime shadow zone in the Southern Ocean.

Did that word bother you? The word I refer to is legitimate, which does require some definition and I am open to adopting a different word for the lexicon if you have any suggestions. Maritime piracy, maritime banditry, smuggling and trafficking, oil theft, and a host of other criminal activities at sea are conducted by non-legitimate non-governmental actors in various places in the world. While causes may be increased population density of coastlines, poor regional governance and failed states, or the absence of an effective regional maritime security enforcement agency, criminal activity on the seas - particularly in the littorals - is not going away anytime soon. As more commercial interests emerge offshore and as the commercial population on the seas increase in the maritime domain, it should be expected that criminal activity on the seas will increase, and as the recent history of Somalia shows us; well financed enterprises will emerge as well.

But it is the trend of legitimate NGOs that interests me most, and regardless of what you think about the organization or their politics, the Sea Sheperd Conservation Society is a legitimate non-profit non-governmental organization. Legitimacy means a lot of things, but first and foremost being a legitimate NGO means the organization can be held to the rule of law, when applicable.

To celebrate the upcoming sixth season of Whale Wars, the political struggle between the Sea Sheperd Conservation Society and Japan's Institute of Cetacean Research has moved beyond clashes at sea that somewhat resemble non-lethal irregular maritime warfare activities towards another type of political combat often found in war zones: Lawfare.
A U.S. appeals court ordered American anti-whaling activists to keep 500 yards away from Japanese whaling ships off Antarctica.

The 9th U.S. Circuit Court of Appeals issued an injunction against the Sea Shepherd Conservation Society, which sends vessels every December to disrupt whale killings by Japan's Institute of Cetacean Research.

The whalers sued Sea Shepherd last year to prevent the protesters from interfering, but the judge refused to grant the request.

The 9th Circuit ordered Sea Shepherd not to approach any of the Japanese vessels until it can rule on the merits of the whalers' appeal.

Japan's whaling fleet kills up to 1,000 whales a year for research. Whale meat not used for study is sold as food in Japan, which critics say is the real reason for the hunts.
In response to this injunction, and just days into the Sea Sheperd Conservation Society's latest anti-whaling campaign Operation Zero Tolerance, Paul Watson has relieved himself from duty.
For the 35 years since I founded the Sea Shepherd Conservation Society I have strived to act non-violently and within the boundaries of the law.

Sea Shepherd has never been a protest organization nor have we engaged in civil disobedience. We are an anti-poaching organization established to uphold international conservation law. We operate within the guidelines of the United Nations World Charter for Nature that allows for intervention by non-profit non-governmental organizations and individuals to uphold international conservation law.

During Sea Shepherd’s long history we have never caused a single injury to any person. Although we have broken some bureaucratic regulations like Canada’s so called Seal Protection Act, we did so to challenge the validity of these regulations, which were in contradiction to the Canadian Charter of Rights and Freedoms. In all other respects we have always operated within the boundaries of the law, both international and national.

In 1998 Sea Shepherd USA complied with the order by the United States Coast Guard to not approach within a thousand yards of the Makah whaling operation in Washington State.

I myself have never been convicted of a felony crime.

And for this reason, the Sea Shepherd Conservation Society in the United States and myself as a U.S. citizen must comply with the order by the 9th Circuit court of the United States.

Because I have been personally named in the injunction I have resigned as the President of the Sea Shepherd Conservation Society in the United States and as President of the Sea Shepherd Conservation Society Australia. I have also resigned my position of Executive Director of Sea Shepherd Conservation Society USA and I will hold no paid position with Sea Shepherd anywhere Sea Shepherd is registered and operates as a non-profit organization in any nation.

I have also stepped down as campaign leader for Operation Zero Tolerance. Former Greens Party leader and former Australian Senator, Bob Brown of Tasmania will now hold this position.

I have also stepped down as Captain of the Steve Irwin. Captain Siddharth Chakravarty of India is now in command of the Steve Irwin. The other three Captains are citizens of Sweden, France and Australia.

As a United States citizen, I will respect and comply with the ruling of the United States 9th District Court and will not violate the temporary injunction granted to the Institute for Cetacean Research.  I will participate as an observer within the boundaries established by the 9th Circuit Court of the United States.

Some people pick sides in the struggle between Japan's Institute of Cetacean Research and the Sea Sheperd Conservation Society. Don't be that guy, because the actual politics of either side of their issues have absolutely nothing to do with our interest in their disputes here at ID.

I have no idea how much money Japan's Institute of Cetacean Research is spending on their legal battle against the Sea Sheperd organization in the 9th Circuit court, but it is probably a lot. What have they accomplished? They basically turned Paul Watson into a living martyr, able to freely roam around the planet fundraising for more activities against Japanese whalers, but they haven't accomplished anything else.

And that is the key point here - Lawfare is going to be a fact of life for legitimate maritime NGOs that conduct any engaging activity at sea. However, I also expect that legitimate non-governmental organizations are going to be able shuffle resources around multiple countries under any number of Flags until they find a legal system supportive of their organizational goals - and by doing so avoid legal consequences solely by avoiding legal jurisdictions.

Until now Sea Sheperd has been the largest legitimate maritime NGO operating in the maritime shadow zones, but an even larger organization is about to step up and unlike the Sea Shepherd Conservation Society, these guys will be packing heat!
A private navy founded by businessmen, former marines, retired captains and soldiers will protect its first group of oil tankers and bulk carriers from pirates in the Indian Ocean in late March or April, according to Bloomberg Businessweek.

Typhon, a venture formed by a group of U.K. businessmen led by Glencore International’s Chairman Simon Murray, will recruit 240 former marines and sailors for its navy...

Typhon, the company behind the venture, is chaired by Simon Murray, a millionaire businessman who joined the French Foreign Legion as a teenager and walked unsupported to the South Pole aged 63.

Typhon has been set up because the Royal Navy, NATO and the European Union Naval Force lack the vessels to patrol an area of ocean that is as large as North America, said Anthony Sharp, chief executive. "They can't do the job because they haven't got the budget and deploying a billion-pound warship against six guys (pirates) with $500 of kit is not a very good use of the asset," he said.

Typhon said its aim is to deter pirates from attacking its convoys, rather than engaging in firefights.

The pirates will face former marines in armoured patrol boats capable of 40 knots and able to withstand incoming Kalashnikov fire. They will be armed with close-quarter battle weapons, such as the M4 carbine, and sniper rifles with a range of 2km.
Also worth noting this particular NGO is bringing it's own brand of political celebrity.
Other Typhon directors include Admiral Henry Ulrich, former commander of US Naval Forces Europe, General Sir Jack Deverell, former commander in chief Allied Forces Northern Europe, and Lord Dannatt, former chief of the general staff.
The last major commercial vessel hijacked off Somalia was MT Royal Grace, a Panama-flagged oil tanker owned by a UAE-based company that was hijacked on March 2, 2012.... 10 months ago! The last pirate attack on a commercial vessel came Saturday when a merchant vessel was able to repel an attack when USS Halyburton (FFG 40) responded and all pirates were rounded up by the French Frigate FS Surcouf (F 711).

Some are calling this a private Navy, but there is very little difference in modern international law between Typhon's private Navy and the Sea Shepherd Conservation Society. One organization is arming themselves with weapons like rancid butter and the other is using bullet proof fast boats armed with ex-Marines fielding M4s and sniper rifles.

But there is a big difference between Somali pirates and Japanese whalers, right? A more legitimate question is how different are Somali pirates and Somali fisherman?

There are a lot of people making a lot of money on the Japanese whaling industry. There are also a lot of people making a lot of money on the Somali piracy industry.

The Typhon private Navy is not something radical, although it also doesn't really have a lot in common with the 19th century articles of marque either, despite the appearance of similarities. Typhon represents the next evolution of a maritime NGO setting up shop in the worlds most popular ungoverned maritime shadow zone. Over the next few years and in response to increased resource competitions offshore in greater frequency and intensity, organizations like the Sea Shepherd Conservation Society that are engaged in political activism and organizations like Typhon that are engaged in armed maritime security are going to become more common as global naval power trends towards more expensive, less numerous high end capability combat platforms that will almost certainly leave huge gaps in global maritime naval coverage necessary for good governance at sea.

With no unified ruleset governing the laws of the maritime domain, we should only expect these early examples to be carried forward as precedents. What does an armed fishery protection NGO in the South China Sea look like five years from now, and could such an entity be the catalyst for a proxy war in the South China Sea? If I am the Japanese government and I'm looking for a way of disrupting Chinese fishing vessels operating in my EEZ, I'm not sure why I wouldn't be looking at exactly this type of low cost, unofficial solution. When naval power lacks the strength, authority, or interest to enforce maritime security, alternatives will and are emerging, and I do wonder if the ruleset we are allowing to be set forth by others is actually in our long term national interest. The maritime NGO was an issue easy to ignore when it was the Sea Sheperd hippies, but now we are seeing a well funded, armed maritime NGO with significant political ties to major maritime nations.

I have no idea how maritime NGOs will continue to evolve, but one thing I am sure of... I won't be surprised the day Henry Ulrich is specifically named in some lawsuit in a US court in the future related to the murder of an AK-47 wielding Somali fisherman off the coast of Somalia, because when it comes to legitimate maritime NGOs, Lawfare is one of many expected consequences.


Additional Notes:

Midrats will be having a three year anniversary special this Sunday. I look forward to it.
The legal troubles for Paul Watson are bigger than simply the 9th circuit ruling. If that topic interests you, this link probably will too (PDF).
More on the Sea Sheperd here and here.

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