Whale Wars and Extraterritorial Jurisdiction

All right, a student asked me about this, and I couldn’t resist, and I’m trying to fit my grades into the curve and this was a great distraction, and maybe now I’ll get to be on t.v. finally:  Here for your enjoyment is my initial take on the possibility of prosecuting Japanese whalers in U.S. courts for running over environmentalist speedboats in icy Antarctic waters.  As it happens, I’m teaching a class on “International Criminal Law” this summer, so I might as well do a day on Antarctica, given the continuing drama of “Whale Wars.”

    You can read it all after the fold.

    As you saw in the paper yesterday, the Ady Gil, a small ship deployed by the Sea Shepherds-- an environmental group dedicated to interfering with Japanese whaling off Antarctica-- was apparently rammed by a Japanese whaling boat.  The ship sunk but the crew was rescued.  You can check out some footage of the incident on YouTube, and I'm sure there'll be more.  In addition to the footage shot by the whaling ship, there was a camera crew on another Sea Shepherd ship nearby, filming for a series called “Whale Wars,” which documents the group's interactions with the whalers.  My college roommate is one of the producers, so I have an interest in the show, and have watched a few episodes.  Like most of the audience, I had wondered when this was going to happen. 
    The comment thread on YouTube is fascinating.  There's the usual rudeness and name-calling, of course, but there's also the substantive question of whether whoever was commanding the Japanese whaling ship had committed a crime and might be brought to justice.  Now let's assume that the whaling ship's pilot deliberately rammed the speedboat with the intent of sinking it. Maybe that's not how it went down– viewers may recall that the Sea Shepherds crews are not experienced sailors by any stretch of the imagination, and may have recklessly caused the collision– but it looks enough like an intentional ramming for p.c.  To support knowledge/intent, the whaling vessel was firing high-pressure water cannons at the speedboat, before, during, and after the collision.  Furthermore (and this could perhaps turn into a defense?) the speedboat, apparently, had been trying to tangle the whaling ship's propellers with ropes.  At the initial investigation and charging stage, therefore, I will hazard the opinion that the ramming could constitute a crime: mostly likely agg assault and maybe attempted murder, depending on what the whaling ship's captain (or whoever gave the order) did and could reasonably expect to happen as a result of the ramming. 
    The question for the YouTube commenters was jurisdiction.  Here's one exchange (note that “n8402b” was apparently initially defending the legality of whaling, not ramming):

    n8402b:  Whaling is not illegal. Less than 40 countries out of over 190 ban whaling. Just because some liar says it is illegal. Does not make i[t] so.  Which law are they enforcing?

    CYLONEJACK:     Attempted murder on the high seas.

    n8402b:      Which LAW? Which one are you citing?

    7Calypso:     Looks like attempted murder to me, too. Can the Japanese crew be brought before some type of international court? The Hague?
 
    All right, so here's a quick answer, at least with respect to the U.S.  You don't need an international court so long as at least one person on the speedboat was a U.S. citizen. The United States exercises special jurisdiction over “[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”  18 U.S.C. § 7(7).  Then you charge straightforward 18 U.S.C. § 113:

     Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
    (1) Assault with intent to commit murder, by imprisonment for not more than twenty years.
    (2) Assault with intent to commit any [other] felony by a fine under this title or imprisonment for not more than ten years, or both.
    (3) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.
    (4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than six months, or both.
    (5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both...

    Now from the Sea Shepherds website, we learn that no one on the sunk vessel was a USC.  The six crew members were listed as being from the Australia, New Zealand, and the Netherlands.  But the hypo persists: what if one of the crew was American?  And what if the captain of the Japanese ship came to U.S., and while here, did a t.v. interview and admitted intentionally ramming the Ady Gil? (Judging by some of the comments on YouTube, he might be quite proud of having done so.)  Suppose he were arrested and charged as above, would he have a good jurisdictional defense or not? 
    The answer depends on whether the incident took place “outside the jurisdiction of any nation.”  Here's the location, according to the Sea Shepherds website: 64 Degrees 3 Minutes South, 143 Degrees 9 Minutes East.  You can see where that is thanks to the magic of computers:  it’s just off the coast of the Antarctic continent, 1500 miles from Australia.  And 1500 is a lot more than 12, the number of miles allotted as territorial waters by the Law of the Sea Treaty.   But the Sea Shepherds crew think that Australia could and should exercise jurisdiction: “This is Australian Antarctic Territorial waters and I see the Japanese whalers doing whatever they want with impunity down here without a single Australian government vessel anywhere to be found,” one crew member is quoted as saying.  The recurring Sea Shepherds theme on the show, from the very first episode, is that the Japanese whaling vessels are violating Australian law, which bans whaling.   (Voiceovers are careful to stipulate that as far as the relevant whaling treaties go, “most experts think that what the Japanese are doing is legal.”)  So can/does Australia exercise jurisdiction over crimes committed at that location?
    I believe that the United States and Australia may have somewhat different views on Australia's territorial jurisdiction in Antarctica.  Australia has made a territorial claim to a sector of Antarctica.  The Australian Antarctic Territory Acceptance Act of 1933 provides: “That part of the territory in the Antarctic seas which comprises all the islands and territories, other than Adelie Land, situated south of the 60th degree south latitude and lying between the 160th degree east longitude and the 45th degree east longitude, is hereby declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth, by the name of the Australian Antarctic Territory.”  The coordinates of the incident are within that territory.  (And in case we think there’ll be a relevant distinction between Antarctic land and Antarctic waters, for convenience of the hypo let us assume that the ramming occurred within twelve miles of the Antarctic coast. It appears that it did, but I'm not certain.)
    The United States, however, does not recognize any other country’s territorial claims to Antarctica.  (See the government’s Supreme Court brief in Smith v. United States, which you can find at 1992 WL 511966, and which collects authorities).  And Article IV of the Antarctic Treaty of 1959, of which the U.S. and Australia are both signatories, says that no new claims are to be asserted, but in the same breath says that no existing claims are to be prejudiced or renounced.   If the U.S. doesn't recognize Australia's claim, then would the putative Australian jurisdiction still be available as a defense against the exercise of U.S. special jurisdiction if the defendant could show that in fact Australia does assert/exercise jurisdiction there?  Or would U.S. courts decline to recognize Australian jurisdiction and find special U.S. jurisdiction?  Consider Judge Kozinski’s reading of the statute: “Taken as a whole, 18 U.S.C. § 7 extends the jurisdiction of the federal criminal laws to areas where American citizens and property need protection, yet no other government effectively safeguards those interests.” United States v. Corey, 232 F.3d 1166, 1171 (9th Cir. 2000) (emphasis added).   This view of Section 7 would suggest that a de facto failure to intervene by the Australian government– precisely the Sea Shepherds’ complaint– would support Section 7(7) jurisdiction.  And in the same paragraph, Judge Kozinski cites Antarctica as an example of the applicability of Section 7(7)’s “outside the jurisdiction of any nation” provision. (That’s dicta, because Corey isn’t about Antarctica.)
    (Parenthetically, the Federal Tort Claims Act has produced the most significant analyses of Antarctic jurisdiction, in more or less the same context.  The FTCA exempts from its coverage torts “arising in a foreign country.”  How about Antarctica?  “[I]f it be deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply.” Beattie v. United States, 592 F.Supp 780 (D.D.C. 1984) (emphasis added).  Beattie is a great read because it engages in a long analysis of what factors might bear on whether Antarctica should be considered a “foreign country.” The facts on the ground have changed, obviously, since 1984, but the “asserts sovereignty” standard is still a puzzle, isn’t it? It appears that the U.S. position is that other countries in fact assert sovereignty, but that the U.S. does not recognize those assertions of authority, but at the same time has agreed that the other countries need not renounce those claims.)
    So there you have it.  This is an interesting problem, and I'd love to hear others’ thoughts. Were I the judge ruling on the jurisdictional motion, I would rule as follows: Antarctica is outside the jurisdiction of any nation.  The fact that Australia has asserted sovereignty over the territory and waters where the act took place does not compel a United States court to renounce extra-territorial jurisdiction, for two reasons.  First, there is no evidence that the Australian government actually exercises its claimed sovereignty to enforce the rule of law in that territory and waters.  Second, the other two branches of government here in the United States have consistently declined to recognize any other nation’s claim to sovereignty in Antarctica, including Australia’s. 
    Is that more or less what you would do? Am I missing something important? And above all, what sorts of witty off-camera asides will most impress Norah O’Donnell and Campbell Brown?