Sunday, January 22, 2006

The Answer to Piracy: the U.S. Navy. But What About Terrorism?

Cool! A U.S. Navy vessel has boarded and captured a suspected pirate operating off the coast of Somalia. As Roger noted a while ago here, pirates recently chased a cruise liner in the same waters. It looks like the U.S. Navy is on the case.

But what legal authority does the U.S. Navy have to board and capture a suspected pirate on the high seas? More to the point, after catching them, what legal authority does the U.S. have to prosecute them and seize their ship?

Here is yet another way that international law can be useful. The customary law of the sea, which was probably codified in Articles 102-107 of the UN Convention on the Law of the Sea, appears to govern this situation. Article 102 states:

On the high seas . . . every State may seize a pirate ship . . . arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Of course, the U.S. is not a party to the Law of the Sea Treaty. Thus, if it sought to prosecute and punish the pirates in its domestic courts (which it can do under the treaty), it would have to apply customary international law. They might even convene a special military commission and apply the customary law to prosecute them.

In fact, it sounds a lot like how the U.S. military in general is trying to deal with terrorists. Unfortunately, the international consensus on terrorists is far more elusive than that with respect to pirates. So international law can only get you so far.


Blogger anonymous said...

I'm not sure why there's even a need to give a nod to the UN CLS here. Presidential authority to utilize the military in routing pirates goes back to the U.S. founding, and was indeed an primary consideration for Thomas Jefferson in deciding whether to fund a standing Navy. (See Gerard W. Gawalt, America and the Barbary Pirates: An International Battle Against an Unconventional Foe, available at The Library of Congress,
mtjprece.html noting "Although as secretary of state and vice president he had opposed developing an American navy capable of anything more than coastal defense, President Jefferson dispatched a squadron of naval vessels to the Mediterranean [to route the Barbary pirates].)

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