Universal jurisdiction and the pirate: time for an old couple to part.

• Author: Goodwin, Joshua Michael

ABSTRACT

For hundreds of years, the world has allowed any nation-state to exercise universal jurisdiction over high seas piracy. This has been recently codified by the United Nations in the Convention on the Law of the Seas. It has been almost universally assumed that allowing states to do this was legitimate. As this Note will argue, however, the reasons for allowing states to exercise jurisdiction in this way no longer make sense in the modern world. Further, allowing states to exercise universal jurisdiction over pirates violates the due process rights of the pirates and poses a threat to international stability. To address these concerns, this Note proposes prohibiting states from exercising universal jurisdiction over pirates and instead requiring that states wishing to exercise jurisdiction over pirates base that jurisdiction on a more traditional jurisdictional form.

TABLE OF CONTENTS I. INTRODUCTION II. PIRACY'S HISTORY A. Piracy in the Ancient World B. Piracy from the Sixteenth to the Early Eighteenth Century C. Modern Piracy D. Summation III. VIEWS ON JURISDICTION AND PIRACY A. Bases of Jurisdiction B. Reasons for Applying Universal Jurisdiction to Piracy 1. Statelessness 2. Pirates are Hostis Humani Generis 3. Heinousness 4. Uniform Punishment 5. Narrowly-Defined Offense 6. Piracy Directly Threatens or Harms Many Nations 7. Summation IV. WHY UNIVERSAL JURISDICTION AS APPLIED TO PIRACY SHOULD BE ELIMINATED A. Potential to Cause International Tension B. Violation of Notions of Due Process V. SOLUTIONS A. Retain the Status Quo B. Creation of an International Piracy Regulatory Regime C. Rely Solely on Other Forms of Jurisdiction VI. CONCLUSION I. INTRODUCTION

On November 5, 2005, a band of pirates attacked the Seabourn Spirit, a luxury cruise liner, 100 miles off the Somali coast. They attacked from a small boat with grenade launchers and machine guns. (1) The attack caught the world's attention and prompted several questions. What can be done about piracy in general, and how can it be stopped? How can the pirates that attacked the Seabourn Spirit be found and captured? Who should be responsible for finding and capturing them? And once a country does find and capture the pirates, how should it punish them?

Throughout history, scholars and politicians have attempted to answer the question of how to stop piracy. (2) Yet, piracy remains a problem. Unfortunately, piracy is likely to continue to be a problem for the foreseeable future. While unable to solve the piracy problem in general, politicians and scholars seem to agree about who can capture and punish the pirates. If a country finds the pirates within its territorial waters, it can capture and punish the pirates under its municipal law. On the high seas, any country may capture the pirates and punish them according to the capturing country's laws. Thus, if the Brazilian Navy found and captured the Somali pirates on the high seas despite no obvious connection between Brazil and the pirates or the cruise ship, Brazil could capture the pirates and subject them to Brazilian law. This concept is known as universal jurisdiction, and it is this Note's focus.

According to some legal scholars, universal jurisdiction is a deeply entrenched exception to the norms of international jurisdiction that has developed over the past several hundred years. (3) The concept of universal jurisdiction has been codified in the U.N. Convention on the Law of the Sea (UNCLOS).

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship.... The courts of the State which carried out the seizure may decide upon the penalties to be imposed.... (4) Under this article, if a pirate from country A attacks a vessel from country B on the high seas, country C has the right to capture the pirate, subject him to country C's laws, and punish him according to those laws. Country C can do this even though it has no tie to the pirate or the vessel attacked. By reviewing piracy's history, comparing universal jurisdiction with other forms of jurisdiction, and discussing why the reasons once given for allowing states to exercise universal jurisdiction over pirates are no longer applicable, this Note will show that pirates should no longer be subject to universal jurisdiction.

Part II of this Note provides a brief history of piracy itself. To understand why universal jurisdiction was originally applied to piracy, it is important to understand how piracy was originally viewed and how this view has changed over time. This Note considers three major periods: piracy in the ancient world, piracy from the time of Sir Francis Drake through the 1720s, and piracy in the twentieth century. These periods are important to the development of the principle of universal jurisdiction. While it would certainly be entertaining to recount the story of the Queen Anne's Revenge and her travels prior to ending up at the bottom of Beaufort inlet, this Note will avoid telling such legends and focus instead on why and how piracy was punished during these periods.

Part III of this Note will review how courts and legal scholars have viewed international jurisdiction in general and as applied to piracy. It will also analyze the historical reasons for allowing states to exercise universal jurisdiction over pirates. Further, Part III will also show that those reasons no longer apply to modern piracy.

Part IV will explain why states should not be allowed to exercise universal jurisdiction over piracy; doing so creates an unnecessary risk of international tension as well as violates notions of due process. This will be based mostly on lessons learned from the application of the Due Process Clause of the U.S. Constitution to issues of personal jurisdiction in the United States.

Part V will suggest alternative ways the international community can deal with piratical jurisdiction. Despite scholarly comment, bases of jurisdiction other than universal jurisdiction are applicable to pirates on the high seas. Use of these other forms of jurisdiction ensures no one is denied due process and prevents some of the tension that may result in the international community if a country were to misuse universal jurisdiction.

2. PIRACY'S HISTORY

   A brief history of piracy is important to understand the reasons why states were initially allowed to exercise universal jurisdiction over pirates and why it is still allowed today. Thus, Part II will first discuss piracy as it existed in the ancient world. This Part will focus on two subjects: the history of the word piracy and how the Ancient Greeks and Romans viewed piracy. Then, the discussion will shift to piracy during the sixteenth, seventeenth, and eighteenth centuries. Lastly, there will be a brief discussion of modern piracy.

   1. Piracy in the Ancient World

      What is commonly thought of as piracy has existed for thousands of years. The Ancient Greeks used two different words to describe piracy: [TEXT NOT REPRODUCIBLE IN ASCII](leistes) and [TEXT NOT REPRODUCIBLE IN ASCII] (peirates). (5) Homer and other Greek writers of the Classical period (c. 500-330 B.C.) used the word leistes. (6) It described both an armed robber and a plunderer at sea. (7) Historians cannot find any use of the word peirates firmly dated before 267 B.C. (8) But, like leistes, it described both what is now considered piracy as well as land based banditry. (9)

      The Romans also used two different words to describe piracy: praedo and pirata. The latter is a derivative of the Greek peirates and is the word from which the English word "pirate" is derived. (10) Praedo and pirata described both land based bandits and sea-faring pirates. (11) While the word "pirate" may have ancient roots, the meaning of the word has changed to cover only sea-based robbery. It is important to remember when ancient writers used words like peirates and pirata, they were not necessarily referring to the modern day view of piracy.

      Early historians have suggested that the act of piracy can be traced back to the beginnings of navigation. "From the time when men first went down to the sea in ships, piracy and robbery have been regarded only as one of the means of livelihood that the sea offered." (12) It is tempting to talk about piracy dating back to the second millennium B.C. (13) There are records that show that ships were sailing the Mediterranean by 1200 B.C., and there are scenes that depict fighting at sea around 1190 B.C. (14) Thucydides wrote that Minos cleared the sea of pirates around 1700 B.C. (15) But reliable evidence is lacking to show that people practiced piracy at this time. (16) It is not until the Homeric poems that piracy is first mentioned. (17)

      The concept of piracy in the Homeric poems is different from the modern day concept of piracy in other ways as well. The aims and methods of piracy and warfare were "virtually indistinguishable in the Homeric World." (18) Homer mentions piracy several times in the Odyssey in addition to his tales of the story's heroes, but there seems to be little difference between the heroes and pirates. "[B]oth ... set off in their long ships to distant shores to plunder and kill. The difference ... seems only to be their god-given fate." (19) In the Homeric poems, piracy is "an evil business" and looked upon unfavorably. Yet, the practice of piracy could bring higher status and prestige to the pirate due to the fighting involved and the wealth one could obtain. (20) During the Classical Greek period, writers referred to almost anyone who attacked another on the open sea as a pirate. (21) The victim of an attack would call the attacker a pirate and the attacker would consider himself to be conducting a legitimate form of warfare. (22)

      Piracy plagued not only the Greeks but also the Romans. For example, pirates captured a young Julius Cesar in 75 B.C. and held him for ransom. (23) Around the same time, piracy became such a serious problem that...