Choosing the right yardarm: establishing an international court for piracy.

Author:Thedwall, Craig
Position:NOTES

Peering into the enormous hold of the captured ship, the Somali fishermen turned pirates must have realized that they would receive worldwide attention for what they had done. Normally, ship owners pay ransoms in exchange for their property and crewmen without drawing much attention to the payoff. But the seizure of a ship full of heavy eastern-European weaponry and Soviet-era tanks was sure to draw the ire of maritime industrialized countries. (1) After a four-month standoff with the U.S. Navy, the pirates accepted a $3.6 million payment by parachute drop and released the ship with its crew and cargo relatively intact, (2) but the publicity attracted a flotilla of international warships that intercepted skiffs and arrested 117 would-be pirates. (3)

What should be done with them? This Note examines the extensive history of the law of piracy to better understand the state of the law today, and proposes that the International Tribunal on the Law of the Sea expand to encompass criminal jurisdiction over piracy. Sea-borne outlaws have plagued trade routes since the first men of the ancient world dipped an oar. Even kings encouraged and licensed them as part of their struggle for domination over their neighbors. As piracy grew out of control, international cooperation became essential to curb attacks. This communal responsibility for combating piracy culminated in modern conventions and treaties.

Yet the universal jurisdiction granted by these treaties to prosecute pirates goes unused. Maritime nations do not prosecute captured pirates themselves, but turn them over to willing governments, and in so doing miss a golden opportunity for international cooperation, increased legitimacy, and the promotion of the rule of law. The International Tribunal for the Law of the Sea (ITLOS) already exists to settle disputes arising from the UN Convention on the Law of the Sea, which includes piracy. Though the court possesses the requisite maritime expertise, it lacks criminal jurisdiction. Consequently, the UN Security Council should expand the ITLOS's jurisdiction to include a voluntary piracy tribunal as a mater of peace and security. This Note explores what the piracy tribunal could look like, and imagines the benefits and challenges of an expanded court.

  1. THE LAW OF PIRACY

    1. Classical Piracy

      Piracy is as old as seafaring. The ancient Athenians' naval power suppressed pirate attacks, but when the city's attention was drawn away during the Peloponnesian War the attacks resumed throughout the Mediterranean. (4) The Romans, dealing with the same problem, declared "war" on pirates in 68 B.C. and sent fleets out to do battle with them as if the pirates were another rival state. (5) Piracy seemed to be a way of life that bore little moral opprobrium and only drew Rome's ire insofar as its own economic interests were affected. Pompey's fleet defeated a group of pirates from Crete, and then promptly concluded a peace arrangement with them and sent them military assistance. (6) The legal philosopher Cicero famously declared pirates to be hostes humani generis, or enemies of all mankind. Although this seems to imply criminality, the true meaning of Cicero's phrase indicates that Rome should feel free to war openly with the pirate communities of Crete and the Eastern Mediterranean. (7) Pirates were regarded as simply one more foreign culture to be subjugated by the Empire.

    2. The Age of Sail

      Piracy was not directly associated with illegality until hundreds of years later. In 1588, Alberico Gentili equated piracy with any other taking of property--both would be illegal unless authorized by the government. (8) This gave rise to centuries of privateering, where sovereign nations licensed particular ships to attack and rob the ships of that nation's enemies. The distinction between outlawed piracy and acceptable privateering became a matter of a letter of marque issued by a state that licensed such conduct. Many rulers found issuing letters to be more cost effective than building, equipping, and training their own fleets. (9) The age of sail saw such mushrooming growth in both privateers and pirates that prize courts were established to differentiate between lawfully taken and unlawfully taken goods. (10)

      In 1625 Hugo Grotius responded to Europe's blossoming piracy problem by finding that a sovereign fleet's presence gave the sovereign legal control of the surrounding ocean. (11) States were free to apply their domestic laws against anyone who fell into the hands of the fleet, regardless of nationality. Sir Edward Coke disagreed by claiming that piracy was a form of treason, and since a ship from one nation owes no allegiance to another, no foreigner could be convicted of piracy. (12) English common law judges faced this dilemma by generally agreeing that piracy required a showing that the accused acted for private motives, animo furandi, and that he acted as an enemy of all, hostes humani generis. (13) Yet disagreement continued as to the meaning of these terms of art. Private motives could be inferred from the taking itself. (14)

      In Rex v. Dawson, the English judge broadly explained that "piracy is only a sea-term for robbery, piracy being committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy.... The intention will, in this case, appear by considering the end for which the fact was committed...." (15) English courts treated piracy as a simple extension of British domestic law, and in the Piracy Act of 1700 called on all nations to cooperate to decrease the growing scourge, The English colonies heard the call, and a Boston court heard the first case tried under the Piracy Act. (16)

    3. American Piracy

      The American view of piracy is rooted in Blackstone, who believed there were three offenses against the Law of Nations: 1) Violations of safe conduct; 2) Infringement on the rights of ambassadors; and 3) Piracy. (17) The Constitution reflects this belief: "The Congress shall have the Power.... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." (18) The young United States signed treaties with Britain and Spain that treated piracy as an inescapable hazard of commerce; each side promised to return goods found to have been taken by pirates, but did not clearly specify that the parties could punish each other's nationals as pirates. (19) However, this question was answered in 1834 by the case of United States v. Pedro Gilbert and Others. In this case, a Spanish captain commandeered an American vessel. The British fleet later captured his ship in an African port and turned the captain and crew over to the United States for trial. Justice Story reasoned that "all nations exercise equal jurisdiction" over pirates and that any of the three nations involved could have rightly conducted the trial. (20) The groundwork for this decision was laid in United States v. Smith, where Justice Story, writing for the Court, declared that "there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.... Robbery or forcible depredations upon the sea, animo furandi, is piracy. "Justice Story supported this statement with seventeen pages of footnotes alluding to the British tradition of extending local law enforcement over the seas. (21) The rest of the Supreme Court agreed to his definition of piracy but ultimately rejected this expansive view of law enforcement as outside of the young country's role in the international order. (22)

    4. Imperial Britain

      Unlike the United States, the more powerful British continued to press the expansive universal jurisdiction concept. The height of this broad legal power came in the 1871 Kwok-a-Sing Case, where a Chinese sailor with no connection to Britain was tried for piracy in a Hong Kong municipal court after he led a mutiny aboard a French vessel at sea. (23) During this hayday of universal jurisdiction, practical considerations tempered the British view. Specifically, during the 1877 Huascar Incident, the court performed acrobatics to avoid finding that rebels who took Peruvian-bought coal from British colliers were pirates. Civil war belligerents attacking each other at sea were deemed to be more commensurate with legitimate nations engaged in warfare, and less commensurate with pirates. (24) In the British view, these rebels would become sovereign rulers, so prudence dictated that sea-going nations remain detached from such struggles in order to protect future diplomatic relationships. (25)

    5. International Cooperation Grows

      With each nation's jurisdiction over the seas overlapping, several treaties developed declaring similar views of piracy. The 1889 Montevideo Convention declared that the suppression of piracy is the responsibility of mankind. (26) Later agreements relied on the world-wide low opinion of piracy to stretch the definition to include acts of modern warfare thought to be underhanded, such as surprise submarine attacks on civilian targets. (27)

      After the First World War, the League of Nations attempted to codify the law of piracy, but its efforts were met with disapproval when researchers determined that nations should have the right to prosecute pirates operating in the territorial waters of states that are unable to do so themselves. (28) In the face of this disagreement, the League commissioned Harvard Law School to prepare a new draft convention, and the resulting draft excluded acts of states and belligerent insurgents from the definition of piracy but retained the right of pursuit into territorial waters. (29) Seeking consensus, the drafters of the 1958 Geneva Convention on the High Seas limited the definition of piracy to include only violence for "private ends" occurring on the "high seas." (30) This interpretation of...

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