Long gone are the days of Blackbeard; however, in the last two decades piracy has risen again as a serious concern to the global community. In the last few months dozens of ships have been attacked or seized. Last week a ship bound for New Orleans was seized in the Indian Ocean. Many ships languish off the coast of Somalia as floating booty.
The recent increase in pirate activity has prompted policing actions by a consortium of navies to curb the criminal activity. Despite this increase in military policing, the law has been slow to adapt to cope with the growing problem. There is no clear state practice for how to deal with pirates once apprehended and this confusion makes policing efforts more difficult.
Many navies are reluctant to even apprehend pirates fearing that they will violate some aspect of human rights law. For example, holding pirates for an extended period of time before turning them over to judicial authorities may violate provisions of the European Convention on Human Rights. Because of this apprehension, most pirates are only stopped and released. This method of deterrence and disruption does not help curb the number of pirates at sea. The prospect of making millions ensures that released pirates will return to the open ocean to seize or raid passing ships.
What to do with pirates after they have been apprehended is a particularly sticky issue and it has been approached ad hoc. It is the duty of every state to act against piracy according to the U.N. Convention on the Law of the Sea (UNCLOS). UNCLOS provides the general guidelines for how states must address the issue of piracy. The Convention allows for the reasonable boarding of a suspected pirate vessel and the arrest of those on board. It also provides that any state has the power to try pirates under its own law.
Normally under UNCLOS, Somalia would try Somali pirates caught off its coast; however, Somalia’s judicial system is essentially nonexistent. Thus, if pirates are to be tried at all, they must be tried in other countries. UNCLOS allows all states to exercise universal jurisdiction over pirates. Currently, pirates are standing trial in countries like Kenya, France and the Netherlands.
Despite the permissive provisions of UNCLOS, there are certain legal and practical road blocks in prosecuting pirates outside their home country. Many countries have particularly strict rules for prosecution. For example, Denmark and Germany can prosecute pirates only if they have threatened national interests or citizens. U.S. courts are reluctant to exercise jurisdiction unless the vessel involved is American. Most courts prefer that pirates be tried near where they are apprehended or in their home country.
Other countries in the region would be good forms to prosecute pirates. The U.S. and European countries are hoping that Kenya will rise to the occasion and be a sort of “Hague” for piracy trials. The E.U. and the U.S. have concluded “transfer agreements” with Kenya so that pirates can be deposited for detention and trial. This seems to be the best approach to providing for the lawful prosecution of pirates. It saves on the logistical costs of transporting the pirates to distant countries. Also, trying pirates in one, or a limited number of, jurisdictions would provide much needed consistency. Other countries in the region, like Djibouti and Yemen, may also be suited to take pirates, but are currently reluctant to take on too much responsibility.
Some countries question the adequacy and efficiency of the legal systems in these countries to try the pirates. In Kenya, witnesses must be present in person at the trial; therefore witnesses like ship captains must undertake the time and expense of appearing at trial. In response to concern over the adequacy of the region’s legal systems, the Djibouti Code of Conduct has been signed by nine states in the region with the goal to review and improve national law.
Piracy is a criminal law issue, and lawful prosecution can be a powerful tool in deterring crime on the high seas. The real solution to the prevalence of piracy off the east coast of Africa is to address the lawlessness in Somalia. Protecting the principle shipping lanes leading to the Middle East is essential to ensuring international peace and security. And while Somalia remains a “failed state” it is in the international community’s interest to coordinate their domestic laws to allow for the lawful prosecution and detention of captured pirates.
Taylor Dalton, a third-year law student at Cornell, is the Senior Acquisitions Editor of the Journal of Law and Public Policy. Barely Legal, a column featuring a rotating cast of law students, appears alternate Fridays this semester. Taylor may be reached at email@example.com.