April 21, 2009

Piracy and the Law of Nations

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Over the past several months amnesia seems to have spread among governments and television pundits. Though everyone has undoubtedly seen Pirates of the Caribbean, no one knows what to do with real-world pirates. They chose to forget over two millennia of historical precedent. Fortunately, with the case of Maersk, the US government did not take the same confused approach – though things were made much easier by the fact that the ship is American, rather than another country’s. In fact, if these governments and pundits were to do a little research, the legal basis for fighting piracy is one of the foundations for international law and is the foundation of the doctrine of universal jurisdiction, a doctrine in which certain European states have a particular fondness. We should then see this confusion from governments for what it is: an unwillingness to bare the costs of trials and concrete action.

Over 2000 years ago the Roman lawmaker Cicero defined piracy as a crime against civilization. From that time customary international law regarding piracy has developed around the doctrine of hostis humani generis. In other words, pirates are defined as the enemies of all mankind. Defining pirates this way meant that any government could take custody of them and try them. It also meant that individuals who committed acts of piracy lost the right to be protected by their home country. Out from these customs emerged the idea of universal jurisdiction, which says that a nation can prosecute crimes that occur outside of its territory and that don’t involve its citizens, hence a Spanish judge’s pursuit of Pinochet and the officials of the Bush administration.

More recently, customary international law has been codified into formal agreements among nations. One of these, the United Nations Convention on the Law of the Sea, makes an effort, among other things to tackle the definition of piracy. Though the fact that the Convention defines piracy as acts that occur in international waters makes pursuing pirates of the coast of Somalia problematic, the stateless situation there led the Security Council to pass an exception to include acts that occur within territory that what would normally be Somali jurisdiction. Interestingly, although not surprisingly, the United States has not signed the convention (for a variety of reasons that have nothing to do with piracy.) Not signing the UNCLS is not an excuse for the United States to avoid pursuing pirates, no matter who their victims may be. If 2000 years of international custom aren’t enough, then Article I, Section 8 of the Constitution should help make the case that fighting piracy is our responsibility. It states that Congress has the power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”.

No government wants to bare the burden of fighting piracy alone, but responsible governments cannot completely abstain from combating piracy. The arrest of the surviving Maersk pirate is a good precedent, and a precedent that should give other nations the confidence to protect their own citizens. But what about those countries that don’t have the same level of naval power as the US or other NATO members? As Douglas Burgess Jr. said in the New York Times on December 5th, the International Criminal Court could be a venue that could take care of piracy prosecutions. Though I agree that an international tribunal is needed, American skepticism towards the ICC makes that a poor choice of venue. Instead, the UN should set up a special tribunal with the responsibility to prosecute piracy. Ultimately this solution is unsatisfactory, as it only punishes and does not prevent. Piracy will only be eliminated from the Horn of Africa when Somalia has a stable and functioning government. But until that day, an effective system must be established to weigh cases of piracy and give pirates their just deserts.