Landlubbers as Pirates: the Lack of "high Seas" Requirement for the Incitement and Intentional Facilitation of Piracy

• Publication year: 2013

Landlubbers as Pirates: the Lack of "High Seas" Requirement for the Incitement and Intentional Facilitation of Piracy

George White

LANDLUBBERS AS PIRATES: THE LACK OF "HIGH SEAS" REQUIREMENT FOR THE INCITEMENT AND INTENTIONAL FACILITATION OF PIRACY

George White^*

Abstract

This commentary seeks to explain and evaluate the reasoning behind the recent finding, in United States v. Ali Mohamed Ali, that acts amounting to the intentional facilitation or incitement of piracy can constitute piracy in international law, and are subject to universal jurisdiction, even when those acts occurred within the territorial jurisdiction of a State. It argues that the decision has a sound basis in the orthodox rules of treaty interpretation. Although some have argued that universal jurisdiction can inhere over acts of piracy only where those acts of piracy occur beyond territorial jurisdiction, there is a strong legal and principled basis for the contrary conclusion. The decision invites a wider discussion of the limits of "intentional facilitation," brief consideration of which suggests that the lack of a high seas requirement is likely to be expedient and unproblematic.

Introduction

Suppose Defendant D, who remains within the territorial jurisdiction of state X, intentionally facilitates acts of piracy, which occur on the high seas, beyond the territorial jurisdiction of any state. D then travels to state Y. Has D committed piracy under international law and, if so, can Y invoke universal jurisdiction to prosecute D for the acts of facilitation he performed within X? The Court of Appeals for the District of Columbia (D.C. Circuit) in United States v. Ali Mohamed Ali recently answered both questions in the affirmative: Acts amounting to the intentional facilitation or incitement of piracy can constitute piracy in international law and are subject to universal jurisdiction, even when those acts occurred within the territorial jurisdiction of a state.¹

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This ruling runs contrary to numerous academic and judicial proclamations that piracy is necessarily committed beyond the territorial jurisdiction of any state,² but the conclusion ultimately should be welcomed. It arose from application of the orthodox rules of treaty interpretation and is supported by a principled rationale. The case also has wider implications. Brief consideration of the problem before the court will facilitate an evaluation of the reasoning in Ali, followed by consideration of the broader relevance of that decision.

Piracy is defined in Article 101 of the U.N. Convention on the Law of the Sea 1982 (UNCLOS).³ Article 101 establishes three ways in which piracy can be committed. First, under Article 101(a), D commits piracy for the following:

[A]ny illegal acts of violence or detention . . . committed for private ends by the crew or passengers of a private ship and directed:

(i) on the high seas, against another ship or aircraft . . . or

(ii) against a ship, aircraft, persons in a place outside the jurisdiction of any State.⁴

Second, under Article 101(b), D commits piracy by "any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft."⁵

Third, and most significantly for present purposes, D commits piracy under Article 101(c) by "any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)."⁶

The court in Ali was required to determine whether the acts of facilitation in Article 101(c) could occur within the territorial jurisdiction of a state.⁷ The facts giving rise to that question require a brief clarification.

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I. The Facts of Ali

The defendant, Ali, was a politician in the self-proclaimed Republic of Somaliland, situated within Somalia.⁸ He received an email purporting to invite him to a conference in North carolina but was arrested on arrival in the United States.⁹ Prosecutors alleged that Ali, while in Somali territory, negotiated ransom payments on behalf of individuals who had seized a vessel on the high seas.¹⁰ That seizure would unquestionably constitute piracy under UNCLOS Article 101(a). Ali was also alleged to have acted as an interpreter between the captors and the captured crew while on board the ship.¹¹ There was a period of only "minutes" when Ali was on board the ship while it was traversing the high seas, but a lack of evidence rendered it "very difficult" to determine precisely when Ali was and was not within the territorial jurisdiction of Somalia.¹²

Ali had been charged with committing piracy under the law of nations, amongst other offenses,¹³ on the basis that he aided and abetted piracy.¹⁴ The trial court noted that congress would arguably have violated international law if 18 U.S.C. § 1651, incorporating "the crime of piracy as defined by the law of nations"¹⁵ into U.S. law, were to "[proscribe] non-high seas conduct."¹⁶ As a result of the rebuttable presumption that Congress legislates in accordance with international law,¹⁷ the charge of aiding and abetting piracy was restricted to acts of aiding and abetting committed beyond the territorial jurisdiction of a state.¹⁸ Conversely, the D.C. Circuit decided that the international law of piracy encompassed acts of incitement and intentional facilitation committed within state territory, permitting an expansive interpretation of § 1651.¹⁹

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II. The Starting-Point of the D.C. Circuit

The D.C. Circuit began its analysis by examining the text of UNCLOS according to treaty interpretation standards of the 1969 Vienna Convention on the Law of Treaties (VCLT).²⁰ Article 31 of the VCLT states: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."²¹

Unlike UNCLOS Article 101(a), Article 101(c) makes no reference to the location of the actus reus: "[A]ny act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)" suffices.²² Indeed, the United Nations Division for Ocean Affairs and the Law of the Sea has also observed that Article 101(c) "does not explicitly set forth any particular geographic scope."²³ One might well expect express inclusion of any such requirement, given its inclusion in Article 101(a).

Jonathan Bellish has rejected that interpretation, arguing that it is based on the false premise that there is a discrepancy between paragraphs (a) and (c).²⁴ Bellish observes that the "high seas" requirement in (a) relates only to the location of the victim, not of the perpetrator.²⁵ If there is no express "high seas" requirement in (a), yet still a general consensus that the acts referred to in (a) cannot be committed within the territorial jurisdiction of any state, then the lack of express "high seas" requirement in (c) is equally unproblematic.²⁶

That argument is unpersuasive, however. Although it raises legitimate questions relating to common interpretations of Article 101(a), it does not address the fundamental fact that the language of Article 101(c) is expansive, containing no geographical qualification: "[A]ny act of . . . intentional

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facilitation" suffices.²⁷ As a result, the court was no doubt correct to start from the premise that Article 101(c) entails no "high seas" requirement.²⁸

The D.C. Circuit, unlike the lower court,²⁹ did not consider the numerous academic and judicial opinions to the effect that piracy is necessarily committed on the high seas.³⁰ That approach is entirely appropriate because "interpretation must be based above all upon the text of the treaty."³¹ As the International Court of Justice (ICJ) explained in Libya/Chad: "By entering into the Treaty, the parties recognized the frontiers to which the text of the Treaty referred; the task of the Court is thus to determine the exact content of the undertaking entered into."³²

Despite the ICJ's holding, Ali raised three challenges to the court's textual interpretation.³³ All three were justifiably rejected.³⁴

III. Ali's Contextual Argument

Ali's first argument was contextual. UNCLOS Article 86 clarifies that Part VII of UNCLOS, including Article 101, applies "to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State."³⁵ Because VCLT Article 31 requires the terms of a treaty to be given their "ordinary meaning . . . in their context," it could be argued plausibly that such a "high seas" requirement should be imputed into UNCLOS Article 101(c).³⁶ On this basis, the District Court had "agree[d] with Ali that the language of Article 101 cannot override Article 86's forceful statement,"³⁷ with the result that the prosecution was required to demonstrate that "Ali intentionally facilitated acts of piracy while he was on the high seas."³⁸

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The D.C. Circuit was no doubt correct to reject that argument on the basis that such an interpretation would cause "numerous redundancies."³⁹ Although the court justified that interpretative approach with reference municipal precedent,⁴⁰ international law similarly requires a treaty to be interpreted so that words are not deprived of their effect: "It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect."⁴¹

As the D.C. Circuit noted, express references to "the high seas" in other provisions would be utterly without effect if Article 86 imputed a general "high seas" requirement for every provision within Part VII.⁴² Furthermore, certain provisions within Part VII simply cannot be restricted to the high seas. For instance, the court drew attention to Article 92(1), prohibiting flag-changing in a port of call, and to Article 100, concerning "the repression of piracy on the high seas or in any other place outside the jurisdiction of any State."⁴³

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