Sunday, April 13, 2008
The Jolly Roger Still Flies
Much of the world is familiar with Grace O’Malley (transnational foremother of IntLawGrrl Diane Marie Amann), Jack Sparrow and Long John Silver, and those who’ve delved into the history of the Alien Tort Claims Act (or Statute) (see our ATCA posts here) know well the importance of piracy to universal jurisdiction. But today’s pirates seem to have gone largely unmentioned in the mainstream press, despite their having taken some 3200 sailors hostage over the last 10 years, which they’ve ransomed for millions of dollars (paid by the shipowners). In fact, total worldwide losses due to commercial vessel piracy are estimated at USD 13-16 billion per year. Just a little over a week ago, for example, Somalian farmers cum pirates took control of a French luxury liner, the Ponant, in the Gulf of Aden. The passengers had been dropped off and the ship was taken after it pulled out of port, as are many ships in this Gulf, where they’d apparently have to be racing along at 200 nautical miles/hour to escape capture. The 22-member crew was hostaged for a reported $2 million, but the French military operation managed to net 6 of 13 pirates and some of the booty. The legal questions now are: where will these 6 pirates be tried and how should such cases be handled in the future? International maritime law does not provide a complete answer: a state seizing a ship from pirates is authorized to prosecute the pirates (indeed, the law of nations upon which the ATCA was built required states to prosecute alleged pirates and put them to death if convicted). However, these 6 pirates were captured on land, in Somalia, then taken aboard a French vessel. The transitional government in Somalia is apparently not contesting France’s going ahead with prosecution, but France is proposing both Security Council action to provide not only “regular international surveillance” and a right to hot pursuit in the waters off Somalia, but also a revision of the definition of piracy contained in the United Nations Convention on the Law of the Sea (UNCLOS). Article 101 of that treaty defines piracy as occurring on the “high seas,” thus not in a state's territorial waters (a 12-mile-wide stretch off the coast). But poor states unable to take the measures necessary to combat piracy in their territorial waters may be willing to cede sovereignty over these waters, at least with respect to pirate patrols. Now, I realize it would be useless to sue a penniless pirate, but why after 10 years of hostage taking and ransom collecting have none of these people been sued under the ATCA? Has the ransom always been recovered or returned as part of the criminal process? Or, hard to believe, are these 6 Somalians the first modern pirates to be captured?