A pirate looks at the twenty-first century: the legal status of Somali pirates in an age of sovereign seas and human rights.

• Author: Davey, Michael

Mother, Mother Ocean, after all these years I've found,

My occupational hazard being my occupation's just not around. (1)

INTRODUCTION

Captains Blackbeard and Kidd, and even Hook and Sparrow, are the primary conception of piracy for many people. (2) For these people, "real piracy is dead and the rest is entertainment." (3) But this vision of piracy merely represents the industry during its so-called Golden Age. (4) One need not travel to the seventeenth century or join a Goonies (5) adventure to find treasure or pirates. Pirates can be found today in the exact same places in which they thrived three hundred years ago: environments of lax law enforcement, advantageous geography, and sometimes even public complicity that allow them to ply their trade out of sight and out of mind. (6) Pirates have remained in that forgotten dimension--until recently.

Somali pirates captured the world's attention on September 25, 2008, when a gang of heavily armed pirates in speedboats, referring to themselves as the Somali Coast Guard, hijacked a Ukrainian freighter, the Faina, carrying thirty million dollars worth of refurbished Soviet tanks, artillery, grenade launchers and ammunition. (7) The pirates demanded a ransom of twenty million dollars cash. (8) While this sensational story piqued the interest of many in Europe and the United States, it also exposed seemingly uncharacteristic deferential behavior and policy towards international outlaws. While the U.S. Navy encircled the pirates and the Russians moved in to join the engagement, the negotiations continued. (9) Certainly, concerns for the crew's safety caution against a commando operation on a ship full of explosives, but the galling fact is that on Somalia's Banaadir Coast this is business as usual, and, until recently, the international community has done little to change it. (10)

The U.N. Security Council has now passed several resolutions intended to allow foreign states to police Somali waters for pirates and even continue their pursuit on land, (11) but the international response has been inconsistent. The French Navy has been aggressively confronting pirates, arresting them, and sending them to Paris to face trial. (12) By contrast, the British Royal Navy has generally sought to avoid confrontation with pirates due to concern over human rights violations. (13) With one fantastic exception, (14) the United States has also refrained from prosecuting Somali pirates on its own soil, preferring instead to seek arrangements for the trial of pirates in Kenya and elsewhere in the region. (15)

This somewhat reluctant response from the international community is in large part the result of states proceeding cautiously in nebulous legal waters. (16) The effectiveness of Security Council resolutions has been limited because they leave unresolved the ultimate issue of a pirate's legal status. (17) Piracy--the world's oldest crime against the law of nations--does not have an easily applied and universally accepted definition. (18) First, it is not clear what a pirate--as opposed to a sea-robber, mutineer, or terrorist--is. Second, it is hotly contested whether piracy creates international jurisdiction, or whether areas of international jurisdiction (the high seas) create the only opportunity for legally cognizable piracy. Third, further ambiguity surrounds the question of whether a pirate has a nationality or human rights. Resolution of the Somali pirates' legal status will provide solid legal footing that will enable the international community to pursue the pirates forcefully.

This Note attempts to define the legal status of Somali pirates. Part I examines the history of piracy and its past legal treatment in order to determine the customary international law of piracy as it existed prior to the twentieth century. Part II examines modern piracy generally, and then more specifically in the context of Somalia, with the purpose of establishing whether the Somali mariner-militants are in fact pirates. Part III surveys the twentieth century legal agreements on the use of force, the law of the sea, and human rights, in order to determine the extent to which the customary international law of piracy may have been codified, supplemented, or overridden.

Finally, Part IV analyzes the implications of the newly established Somali pirates' legal status, with particular focus on who may--and who ought to--assert jurisdiction over the Somali pirates, and what can--and what ought to--be done with the Somali pirates upon their arrest.

1. A BRIEF HISTORY OF PIRACY

   Records of anti-piracy laws date back to the ancient Athenians, (19) but the Roman Republic made the first lasting impression on piratical jurisprudence. (20) Cicero famously declared pirates to be hostis humani generi, meaning "enemy of all mankind." (21) In so declaring, Cicero and the Romans introduced the element of universal jurisdiction into the law of piracy. (22)

   There are two interpretations of Cicero's universal jurisdiction over pirates. Some scholars have argued that even at this early stage of the law of nations, the principle of universal jurisdiction over pirates was inherently limited by the extent of municipal jurisdiction. (23) In other words, an individual who committed piratical acts was not considered a pirate while within any nation's municipal jurisdiction, and therefore was not susceptible to prosecution by any nation except the one within whose territorial waters he was. (24) An alternative interpretation is that the principle of universal jurisdiction was a legal compromise between effective enforcement of the law against pirates and the sovereign rights of nations over their territorial waters. (25) The compromise of universal jurisdiction, therefore, was to permit encroachments by foreign nations in the territorial waters of any nation for the purpose of hunting down pirates and protecting commerce among nations. (26) The determination as to which interpretation of this crucial tenant of the law against piracy has become customary international law--if either interpretation has become so developed--requires further inquiry into the evolution of piracy and universal jurisdiction as developed in the common law. (27)

   Throughout the history of Western Civilization, pirates, despite bearing the label of enemies of all mankind, have not been consistently treated as criminals. (28) Often, warring, or merely rival, European nations supplemented their navies with pirates. (29) As one scholar noted, "Queen Elizabeth viewed pirates as an essential adjunct to the Royal Navy." (30) Pirates were used to diminish the accrual of wealth by foreign powers while maintaining an official peace among nations. (31) Alternatively, pirate attacks could serve as a desired provocation to lure an enemy into a war it was not prepared to wage. (32) Of further advantage was the broad base of sailors experienced in maritime combat that pirates provided. (33) The problem, however, for countries that used pirates as weapons against each other was that the pirates could not be relied upon to forego their piratical activity upon request of government or even by mandate of law. (34) The pirates' rejection of law and the exercise of their will against the interests of society firmly placed them in the class unto themselves that Cicero had long ago identified.

   Pirates considered themselves to be legally separate from any nation or rule of law. (35) Blackstone assessed the pirate's unique legal status as one characterized by perpetual war with society: a pirate "[h]as renounced all the benefits of society and ... by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right, by the rule of self-defence, to inflict that punishment upon him.... (36) True to the conception of pirates as separate legal entities, pirate ships operated under their own laws--known as "pirate articles"--that were "often as specific and meticulous as acts of Parliament." (37) Thus, in the law of nations there were three legal categories in the eighteenth century: states, civilians, and pirates. (38)

   Pirates, once considered assets to states, became liabilities at the close of the seventeenth century. As the states' interest in peace grew in order to support flourishing maritime commerce, pirates became a universal problem and thus lived up to their ancient tide as the enemies of all mankind. In 1856, the European nations signed the Declaration of Paris, (39) which abolished state-sponsored piracy and sounded the death knell for piracy in the West as Western imperial powers cooperated to eradicate the mutual threat to their continued prosperity. (40)

   Universal jurisdiction has been a long-standing practical solution to the common problem of piracy throughout the history of Western civilization. (41) In a time when the political force of the world was amassed in only a few empires with a common heritage and a common interest in distant commerce, universal jurisdiction over pirates was a logical response. (42) As more nations set to sea, the interest in peaceful maritime commerce correspondingly grew, but the practice of international anti-piracy enforcement and the application of universal jurisdiction changed. (43)

   A rift developed between universal jurisdiction over piracy in theory and in practice as emerging maritime powers enacted domestic legislation to enforce international norms against piracy and as the scourge of piracy diminished. (44) Thus, pirates in the nineteenth and twentieth centuries were increasingly "hunted down by their own countrymen." (45) This evolving practice carried with it two implications contrary to the theoretical tenets of universal jurisdiction. First, routine domestic enforcement potentially implied exclusive domestic jurisdiction over pirates in a state's territorial waters. (46) The competence of emerging powers to police their own coastal waters and the interests in...