David J. Bederman, the Pirate Code

• Publication year: 2008

INAUGURAL LECTURE OF DAVID J. BEDERMAN AS

K.H. GYR PROFESSOR IN PRIVATE INTERNATIONAL LAW EMORY UNIVERSITY

NOVEMBER 11, 2008^*

THE PIRATE CODE

I

Dean David Partlett, Mr. Roland Straub, honored guests, my family, friends, colleagues, and students-I am immensely gratified and humbled to receive this honor and to deliver this inaugural lecture as the K.H. Gyr Professor in Private International Law here at Emory University. Too often, those of us in the academy-perhaps especially those on legal faculties here and abroad-can be justly accused of living an intellectual life separate and apart from the realities of practice. That is most regrettable. Teaching on a law faculty is a great gift-for me, a wondrous experience of introducing bright young people (and they do seem to get younger with each passing year!) into the profession of law, of devoting my life to public service and law reform, and the freedom to follow my intellectual pursuits in my chosen fields of study. To paraphrase a now time-honored aphorism, "with great freedom comes great responsibility," and this seems an important moment for me to acknowledge the deep debt of gratitude that I owe not only to my university- Emory has been my institutional home for the past 17 years-but also to my country and to the times we live in that make this freedom possible.

II

The main themes for my lecture today-appropriately enough scheduled for Veterans Day, a holiday created in remembrance of the armistice that ended one of the bloodiest conflicts in global history-are responsibility and freedom in the global order and how it affects our everyday lives as participants in markets and commerce, as citizens and statesmen, and as those concerned with the future of humanity and the world we live in. These issues are much on our minds today, especially with the challenges facing the nation, the new administration, and the global economic and political order. The way I propose to explore these issues is to ruminate on what may be regarded as a strange example of law among the lawless-a code of conduct among pirates and thieves-and how it affects our thinking about the private international legal regulation of aspects of contemporary globalization. I'll say more about this presently.

Before I do, it is important that I say a few words about private international law, and not just because it is the formal subject matter of the chair and endowed professorship I have been invested with today, although I am grateful to Roland Straub and his family for recognizing this as a distinctive area of intellectual pursuit in the law. For nearly two centuries, the study of international law has been somewhat formally and artificially divided into two branches. The first is known as public international law-the law of nations-or the legal regulation of relations between states in the international community. Private international law-the joint creation of scholars and jurists such as Justice Joseph Story and Friedrich Carl von Savigny in the early

1800s-looks at the private law relationships (such as property, contract or torts) between private actors in the global order.¹For students of private international law, individual relations, statuses, and transactions that cut across national boundaries do matter. Private international law subsumes such topics as conflicts of law and some aspects of international economic relations as between purely "private" transnational agents. Of course, as public international law diversified its subjects and came to embrace individuals and businesses as legal actors, this distinction has blurred rapidly.

And it is precisely the problem of private ordering across national jurisdictions that poses such a challenge to international law and order. Put another way, those who study private international law have recognized the challenges of globalization, long before that concept was widely understood or entered into popular discourse. And as the dividing line between domestic and international jurisdictions has shifted, so has the boundary between public and private concerns. We may well have reached the point of recognizing a substantial reunification of the two branches of the discipline. International institutions (like the World Trade Organization) are increasingly concerned with ordering relations and transactions between individuals and businesses from different countries.²This augmentation in prescriptive jurisdiction is being matched by an equally aggressive effort to extend the competence of international dispute settlement bodies. Mixed arbitration, involving one governmental party and private actors (such as arbitration before NAFTA between Canada and UPS), is growing in popularity.³The continued use of multinational public enterprises (business consortia with governments as their stakeholders, like INTELSAT⁴) also has meant that state entities should, as a matter of fairness, be treated like private business actors.

The public/private distinction was an illusory frontier for international law. This fiction was the necessary creation of a law of nations that was enduring an intensely positivistic and dualist phase in the mid- to late 1800s, and may have been rightly seen as an avenue for progress and doctrinal safeguarding of the legitimacy of the discipline.⁵But once the international legal system further matured and refined, it was inevitable that the false conflict between state and private actors in international relations would be exposed, just as the hermetic seal between international and domestic systems was punctured.⁶So, today, I find that although I was trained as a public international lawyer, I am increasingly called upon-in my teaching, scholarship, public service, and advising-to use the tools and methods of private international law.

Nowhere is this more evident than in studying actors at the boundaries and interstices of national jurisdictions. The cross-jurisdictional effects of activities are more pronounced today than at most anytime in human history. And although I have taken the position that contemporary globalization is neither historically unprecedented nor practically irreversible,⁷I do understand that aspects of what we are experiencing today are unique, especially in regard to the global legal architecture and system. I do worry that the exuberance of some to embrace globalization has meant that we have ignored the reality that there is as much a chance that we may experience de-globalizing events than an inevitable march of progress. The Great Depression of the 1930s was just such a de-globalizing event, and we need to take care that the current economic circumstances do not replicate that unhappy time in human history. The study of private international law is as much a survey of the failure of regulatory regimes for transnational enterprises, and this lecture explores one example of these as a case-study of what needs to be avoided in order to make globalization work.

III

One of the most significant areas of intersection between public and private international law deals with the multiple and conflicting uses of ocean spaces, whether for security, fishing and hydrocarbon exploitation, navigation and commerce, or environmental protection. This has been so for nearly five hundred years. This international legal topic of regulation has also been delimited into its public and private parts, whether the "law of the sea" for public international lawyers or maritime and admiralty law for private practitioners. Nowhere on the planet are conflicts involving private legal actors more apparent-and more challenging and dangerous-than on the oceans and seas beyond the national jurisdiction of coastal states. The famous debate between the Dutchman Hugo de Groot (Grotius) and Englishman John Selden in the seventeenth century-over whether the seas should be open to all those who would seek to use them, or closed in favor of coastal state or maritime power interests-has conditioned the way we think about this subject to this day.⁸It was an argument in which Grotius, and his notion of freedom of the seas, prevailed.⁹It remains a centerpiece of U.S. foreign policy and a bedrock principle of global economic and trade relations.

But freedom has a dark side. If the world's oceans and conduits of trade are a global commons-owned by none, but used by all-they can be discomfited with Garrett Hardin's famous affliction of the "tragedy of the commons."¹⁰Reduced to its essence, Hardin's tragedy is that common resources are often depleted and degraded precisely because they are not owned and managed by a single rational actor.¹¹Indeed, in such situations, the "rational" course may be to deplete or degrade the resource before any other common-user does.¹²Think of a New England village green, and the incentives of the townspeople to add sheep beyond the limits of pasturage. It is a "race-to-the-bottom," in which there can be but one short-term, and no long- term, winner. Under the rubric of freedom of the seas-the negation of strong jurisdictional competences by states and the absence of effective law- enforcement-large swathes of ocean territory can become lawless.

Piracy has always been the scourge of freedom of the seas. Based on accounts from classical antiquity, we know that pirates have challenged a traditional order for the oceans. Piracy is simply defined as acts of theft and depredation on the high seas beyond the national jurisdiction of any state.¹³

Piracy has been understood as such in international law precisely because the perpetrators seek impunity by locating their unlawful activities beyond the reach of any national law enforcement or authority. That is why piracy has always been considered an offense within the universal jurisdiction of states to prosecute and punish-a pirate is hostis humanis generis, the "enemy of all mankind."¹⁴Inasmuch as pirates "attack the rights of all mankind, and menace with destruction the lives and...