Kenya Again Has Universal Jurisdiction Over Piracy

The Kenyan Court of Appeal in Nairobi has overturned the Mombasa High Court judgment of November 9, 2010, in which Judge M.K. Ibrahim had ruled that Kenyan courts did not have jurisdiction to prosecute anybody for the crime of piracy, unless the crime took place in Kenyan territorial waters.
In the case of In re Mohamud Mohammed Hashi, et al., decided on October 18, 2012, the Court of Appeal determined that Kenyan courts would once again have universal jurisdiction over the crime of piracy.
As yours truly and many others have written before, Kenya had concluded a series of transfer agreements with maritime nations, whereby Somali pirates captured by such maritime nations would be transferred to Kenya, for prosecution in the Kenyan magistrate-level courts. The Mombasa High Court’s 2010 judgment signaled the end of the Kenyan transfer program, because of its holding that only territorial piracy crimes could be prosecuted in the Kenyan courts (for an excellent analysis of this judgment, see this post). Most instances of Somali piracy take place on the high seas, and as such, none would have been eligible for prosecution in the Kenyan courts under the magistrate court ruling.
After the November 9, 2010, ruling, the international community reacted with both concern and pragmatism.
Attempts were made at the diplomatic level to persuade the Kenyan authorities to resume prosecutions. In addition, two new regional partners were identified: the Seychelles and Mauritius both concluded similar transfer agreements with major maritime nations, whereby these two nations agreed to prosecute captured Somali pirates in their national courts.
Facing pressure by the international community, as well as the prospect of losing the transfer model exclusivity, Kenya responded by establishing a special appellate jurisdiction in which the November 9, 2010, ruling would be challenged. The appellate panel was composed of five justices, who, after almost a 2-year delay, unanimously determined that the 2010 ruling would be overturned.
The appellate judgment should result in the restart of the Kenyan transfer program, and in the resumption of ongoing piracy trials in the Mombasa courts, which had all been halted pending this appeal.

Justice David K. Maraga

The Court of Appeals judgment was delivered by Justice David K. Maraga. Justice Maraga determined that the Mombasa High Court had misinterpreted Kenyan law, by subordinating a specialized substantive section on piracy to a more general section on jurisdiction.
In addition, Justice Maraga decided that the lower court had failed to appreciate the applicability of the doctrine of universal jurisdiction.  He wrote that

'the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.'

It seems that, according to Justice Maraga, Somali piracy constitutes a global threat, and that courts of all nations, including Kenya, should be able to prosecute the crime of piracy under the concept of universal jurisdiction.
The re-opening of Kenyan courtrooms for the prosecution of Somali pirates is a welcome development in the global fight against Somali piracy.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[I]f any state were to attack Iranian territory without a decision of the UN Security Council, the question would arise whether the provisions for transit passage under UNCLOS would continue to apply or whether Iran could invoke the laws of war and take action against tankers, especially if they are deemed to be assisting the "enemy."'

-- Nilufer Oral (left), Deputy Director of the Istanbul Bilgi University Marine Law & Policy Research Center in Turkey, posing a knotty hypothetical in her ASIL Insight entitled "Transit Passage Rights in the Strait of Hormuz and Iran’s Threats to Block the Passage of Oil Tankers."  (Strait map credit; photo credit) Oral responds to her own hypothetical by noting that legal requirements of necessity and proportionality would rein in would-be resorts to acts in self-defense.  Taken as a whole, the Insight channel a useful course through the shoals of U.N. treaties, International Court of Justice jurisprudence, jus ad bellum, and other relevant sources of law.

The Law of the Sea Convention: A New Hope

This month marks the 30th anniversary of the adoption of the Law of the Sea Convention. July will mark 18 years since the 1994 Agreement on Implementation, which modified the Convention to resolve US objections, was opened for signature. Eight years have passed since Senator Lugar convened the first round of hearings on the Convention in the Senate Foreign Relations Committee.
Working toward US accession to the  Law of the Sea Convention (prior posts) is not a task for the impatient, but an event held yesterday (May 9th) suggests that this pace is about to change.

Renewed Public Attention to UNCLOS

Business Panel on US Interests in the LOS Convention

The outlook for US accession to the Convention improved sharply this week with a high profile event organized by the Atlantic Council and the Pew Trusts. Co-chaired by former senators John Warner and Chuck Hagel, the event gave equal billing to economic and national security interests in the LOS Convention. In the opening panel, representatives of the US Chamber of Commerce, the American Petroleum Institute, Lockheed Martin and Level 3 Communications addressed the economic opportunities and other benefits that would be opened up for American companies by US accession to the Convention.

Heather Conley
Discusses the
Arctic and LOS

The second panel addressed new security issues. Heather Conley of CSIS focused on international transportation, national sovereignty and boundary resolution issues in the Arctic. John Nagl from the Center for a New American Security addressed navigation, energy and resource security issues worldwide. John Norton Moore focused on the increase of national sovereignty over the seabed and its resources that would come with accession.

Lean Panetta Endorses
the LOS Convention

The event was particularly notable for the stature of the people who made the case for the Convention. In addition to John Warner and Chuck Hagel, former Senate Majority Leader Trent Lott, who now represents Shell Oil and Lockheed Martin’s interests in joining the Convention, sat in the front row and spoke with attendees about the tactics of senate approval. Admiral Robert Papp, the Commandant of the US Coast Guard, gave a strong and personal endorsement. After lunch, the meeting closed with keynote presentations given by the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, and by Secretary of Defense Leon Panetta.

Uncommon heritage: Elisabeth Mann Borgese

Today marks the tenth anniversary of the passing of a woman known by some as the "mother of the oceans."
She was Elisabeth Mann Borgese (right). A talented and peripatetic woman who successfully forged her own path in North American academic and intellectual circles in the middle of the twentieth century. “EMB” died on February 8, 2002, in St. Moritz, Switzerland.
The Ocean Yearbook, which Elisabeth founded, has dedicated its current issue to her and to the thirtieth anniversary of the signing of the Law of the Sea Convention. "Celebrating 30 Years of Ocean Governance under UNCLOS: Elisabeth Mann Borgese and the Ocean Governance Mission of IOI." is the title of that issue, Volume 26.
My own contribution to that forthcoming volume – an article entitled "Uncommon Heritage: Elisabeth Mann Borgese, Pacem in Maribus, the International Ocean Institute and Preparations for UNCLOS III," provides the basis for this post.
Born in Munich on April 24, 1918, in her 83 years Elisabeth claimed four different national affiliations – German, Czechoslovakian, U.S., and Canadian – and five different countries as her home – Germany, Switzerland, the United States, Italy, and Canada.
Elisabeth landed in the United States in 1938, at the age of 20, a young German woman with almost no English and no formal secondary education. Yet she ended up as a Canadian university professor.
She had studied piano performance in Zürich. She and her family had fled to that Swiss city from Hitler’s Germany in 1933 when she was fifteen. Such schooling offered little preparation either for her life in North America, which began with her parents in Princeton, New Jersey, or for the work she would initially find in her new home: first as a Research Assistant to the University of Chicago’s “Committee to Frame a World Constitution” in the 1950s, and later as the only female fellow at the Center for the Study of Democratic Institutions in Santa Barbara, California, where she moved in 1964.
In these first two positions, surrounded by male intellectuals who were shaping the U.S. academic and political landscape, Elisabeth pieced together an informal education and laid the foundation for her life’s work as an oceans activist, environmentalist, and teacher of the law of the sea.

Issues in prosecuting piracy

(Delighted to welcome back alumna Milena Sterio, author of a forthcoming article on maritime piracy, who contributes this guest post)

After last week in the Seychelles, where, as posted, I attended meetings with the Seychelles’ Attorney General and Supreme Court judges, I am back in the United States. I would like to take this opportunity to reflect on some of the legal issues related to Somali piracy and prosecutions in the national courts of the Seychelles.

Jurisdiction
For any nation interested in prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to prosecute pirates, it must amend and expand its jurisdictional statute to allow for such prosecution on the broadest possible basis.
The Seychelles (flag above) has thus revised its national law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows countries like the Seychelles to prosecute acts of piracy to which they have no nexus. (Such issues also have been discussed in prior IntLawGrrls posts, available here.)
Many countries, including the Seychelles before the recent revision, have jurisdictional statutes that allow for pirate prosecutions only if the act of piracy is committed in that country’s territorial sea, extending 12 nautical miles from the country’s shore. Thus, acts of piracy committed outside of such countries’ territorial sea cannot be prosecuted in those countries’ national courts because of a basic jurisdictional shortcoming.
Mauritius, another island nation in the Indian Ocean and another potential partner in the global fight against Somali piracy, has also started to consider expanding its jurisdictional statute to allow for national prosecutions of Somali pirates. It is unclear, however, how Mauritius will revise its statute. Some reports indicate that Mauritius’ law will only allow for prosecutions of piracy acts committed in the Mauritius exclusive economic zone, a stretch of sea extending 200 nautical miles from the country’s shore. This kind of a revision would seriously limit Mauritius’ ability to prosecute Somali pirates, as acts committed on the high seas would be excluded from Mauritius’ jurisdictional reach.
In the Seychelles, it appears that jurisdiction will not pose problems, in light of the new universal jurisdiction statute that this country passed.
One issue that remains unclear is whether the Seychelles’ government will demonstrate an ongoing political willingness to support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal jurisdiction statute, the Seychelles’ authorities may prove unwilling for policy reasons to extend their courts to prosecutions of Somali pirates who have not threatened the Seychelles’ national interests in any way.
Another possible mode of jurisdiction that countries like the Seychelles may adopt in the future is the protective principle – a type of jurisdiction that allows for prosecutions of acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction has been used to prosecute offenses such as treason, immigration violations, and the counterfeiting of national flags, currency, and emblems, it is possible that acts of piracy could be conceived of as violating the national interests of certain countries and thus prosecuted under this model of jurisdiction.
The advantage of using the protective principle may be in the fact that it could allow for the prosecution of acts committed in preparation of piracy – acts that do not qualify as piracy itself.
Acts that do not constitute piracy, yet nonetheless may constitute presumptive offenses, include sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal jurisdiction is of no help, because universal jurisdiction statutes only cover true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the other hand, could be used to cover these kinds of crimes; a country like the Seychelles may successfully make the argument that the planning of a piratical act could threaten its national interests, for the reason that the act of piracy, even if committed on the high seas, could be harmful if it can be shown that pirates were about to target the country's vessels or nationals or enter its exclusive economic zone.
Using a combination of universal jurisdiction to cover true acts of piracy, with the protective principle to cover preparatory offenses, would enable countries like the Seychelles to prosecute the maximum number of piracy-related violations occurring on the high seas.

Cooperation agreements
The next issue related to the prosecution of pirates for a country like the Seychelles is the ability to prosecute Somali pirates who are detained by the naval authorities of another country. Here, the Kenya model of transfer agreements or memorandums of understanding, which I discussed in my last post, proves useful.
The Seychelles, like Kenya (flag at right), has thus concluded transfer agreements with the European Union and the United Kingdom, pursuant to which Seychelles has accepted to prosecute Somali pirates detained by the EU or UK forces on the high seas.
The Seychelles’ Attorney General informed our delegation last week that eleven successful piracy trials had already taken place in the Seychelles’ courts; in all these cases the pirates had been detained by the European Union/British forces and transferred to the Seychelles.
The pirates have been prosecuted for the offense of piracy existing under the Seychelles’ domestic criminal law.
Moreover, pirates have been prosecuted under the theory of “common intention,” a mode of joint criminal liability which allows for combined prosecutions of all pirates involved in a single piracy incident. This has enabled the Attorney General to prosecute pirates in groups of ten or eleven, as well as to charge all those involved in a piracy incident with the same offenses, irrespective of their role in the incident itself. Thus, the prosecutors in these cases did not have to prove what exact role each pirate played in the piracy incident. Rather, each pirate was charged with the act of piracy itself, and each pirate would potentially be imposed the same criminal sentence. According to the Attorney General, convicted pirates have received sentences ranging from five to twelve years of imprisonment, and several other pirates are currently detained and awaiting trial.

Conditions of confinement
The next issue that countries like the Seychelles face is prison capacity and the adequacy of detainment conditions.
The Seychelles and Kenya both have benefited from financial assistance, from major maritime nations as well as the United Nations. Thus, in the Seychelles a new prison wing has been built; this wing is “reserved” for the detention of Somali pirates and arguably coincides with international detention standards.
This in turn will preempt non-refoulement, the human rights principle that prevents states parties to major human rights treaties from transferring pirates to any place where pirates would be likely mistreated. In fact, the Seychelles has clearly demonstrated that its prosecutions are fair and neutral, and that pirates are detained pre- and post-trial in humane conditions. Capturing nations should not face non-refoulement type issues when deciding whether to transfer detained Somali pirates to the Seychelles’ authorities.

After detention
Finally, countries like the Seychelles may be faced with post-detention issues – in other words, once Somali pirates have finished serving their sentences, they may choose to apply for political asylum in the Seychelles. While nobody should be blamed for wanting to live in this tropical haven, it is reasonable for the Seychelles’ authorities to question the need to extend their country’s protection to individuals who have committed heinous offenses such as piracy. It is one thing to detain Somali pirates for a set number of years, it is quite another to offer them political asylum and the possibility to freely live in the Seychelles forever. I would be loath to discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention issues remain a complex issue that the Seychelles’ authorities may have to ponder in the near future.

I look forward to blogging about Somali piracy in the future, and hope that other countries, like Mauritius (flag at left), will follow in the footsteps of the Seychelles and seriously consider opening their courthouse doors to piracy prosecutions.

In Seychelles, in pursuit of pirates

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

VICTORIA – Greetings from the Seychelles!
Along with Professor Michael Scharf of Case Western Reserve University School of Law and Sandra Hodgkinson, Distinguished Visiting Research Fellow at National Defense University, this week I have been engaged in meetings with the Seychelles’ Attorney General and members of the judiciary about the ongoing Somali pirate prosecutions in the Seychelles’ courts.
Mike, Sandy, and I form a delegation representing the Public International Law & Policy Group, a Washington, D.C.-based global pro bono organization. (pictured below, Sandy, left, and I outside The Pirate Arms)
PILPG recently began work in the area of Somali piracy, through the creation of its Piracy Working Group. Mike, Sandy, and I, along with a number of other distinguished academics, practitioners, and conflict resolution experts, are all members of a High-Level Expert Group, and we have traveled to the Seychelles with a two-fold mission:
► First, we have presented the Seychelles’ Attorney General, Ronny Govinden, with copies of eighteen legal memoranda, addressing various legal issues related to Somali piracy.
The memoranda have been written by law firm associates and law students who work for law firms and legal institutions which form the Expert Group’s consortium of academic partners. In fact, since its inception in May 2011, the Expert Group has identified pertinent legal issues related to Somali piracy, and has outsourced the research and writing of legal memoranda on such topics to our law firm and academic partners.
Thus, here in the Seychelles, we have officially entrusted this tiny nation’s prosecutors with the fruit of our research. It is our hope that the legal memoranda will prove useful in the short future, as several Somali pirates already have been prosecuted, and additional pirates are awaiting trial in the Seychelles’ domestic courts.
The legal topics covered by the memoranda range widely – from basic issues, such as the applicability of 1982 U.N. Convention on the Law of the Sea and customary law to piracy incidents off the coast of Somalia, to more specialized discussions on, for example, relevant international regimes related to the freezing both of piracy financiers' assets and of financial gains derived from piracy.
► Second, we reached an oral agreement with the Attorney General through which his office will establish a long-term cooperation and collaboration relationship with PILPG. Mainly, the Attorney General’s office will continue to request legal memoranda from PILPG on various piracy topics, as they arise in future prosecutions.
The Attorney General was able to identify several new topics of interest during our meeting, and he was very enthusiastic about the prospect of future collaboration, which would tremendously strengthen ongoing piracy prosecutions. The Attorney General’s office has a small staff and limited resources; thus, any research assistance by PILPG will be immensely valuable toward supporting piracy prosecution.
It is becoming obvious that the Seychelles’ government is a key player in the global fight against Somali piracy, and that Seychelles’ national courts are an appropriate venue for pirate prosecutions.
Until recently, as discussed in prior IntLawGrrls posts on piracy available here, captured Somali pirates were routinely released because of a lack of viable prosecution options. Major maritime nations which patrol the Gulf of Aden and other waters in the Indian Ocean seem uninterested in prosecuting captured Somali pirates, in their domestic courts, on a true universal jurisdiction model. Piracy prosecutions are logistically difficult, politically unpopular, financially costly, and may even ultimately result in the prosecuting country’s obligation to grant pirates political asylum upon the completion of their prison sentence. Thus, unless national interests of such maritime nations are directly threatened by a piracy incident, major maritime powers are generally not prone to setting up domestic piracy trials.
Over the last few years, Kenya has been identified as a stable regional partner, capable of conducting fair pirate prosecutions in a specialized domestic court in Mombasa. Thus, several countries concluded transfer agreements with Kenya, whereby Kenya would prosecute Somali pirates upon their transfer by the capturing state to Kenyan authorities. Alas, Kenya seems ambivalent about the prospect of accepting more Somali pirates in the future – the Kenyan authorities have indicated that they no longer wish to participate in such transfer programs. While more than a hundred Somali pirates await trial in Mombasa, Kenyan authorities suggested that no additional pirates will be transferred to Kenya in the future. While there are reports that Kenya may revert to its original position of willingness to prosecute pirates, nobody is certain as to what the Kenyan government will ultimately decide.
Hence the need to identify another stable regional partner, like the Seychelles.
The Seychelles are a group of relatively small islands in the Indian Ocean. (map credit) While not in direct proximity of Somalia, the Seychelles have nonetheless been negatively influenced by the development of piracy in this region. Pirate attacks have intensified and proliferated geographically, and Somali pirates have attacked boats and yachts sailing close to the Seychelles’ waters.
Moreover, the Seychelles derive most of their national revenue from tourism. (Pictured at right, a 100-year-old sea turtle at a Seychelles sanctuary; they used to be everywhere but today most live in captivity (sadly).) Any criminal activity taking place close to the Seychelles, like Somali pirate attacks, has the potential to deter tourists attracted to the Seychelles’ beaches and pristine turquoise waters and to thus undermine the development of tourism in this otherwise isolated region of the world. Thus, it will be in the interests of the Seychelles’ government to drastically reduce the number of pirate attacks in these waters.
Prosecutions in the Seychelles’ courts, pursuant to transfer agreements like those that have been in place in Kenya, constitute an important step in ensuring that pirate attacks do not go unpunished.
The Seychelles’ Attorney General confirmed to us the existence of transfer agreements between the Seychelles and the European Union, as well as the United Kingdom. Pursuant to these transfer agreements, the Seychelles has accepted pirates detained by the EU or UK forces on the high seas. Eleven successful piracy trials have already taken place, and 51 pirates have been convicted in the Seychelles’ courts. Several other pirates are currently detained and awaiting trial.
Finally, we ended our visit with a meeting with two members of the Seychelles’ judiciary. One of these two judges, Seychelles Supreme Court Justice Duncan Gaswaga, head of that Court's Criminal Division, has presided over several piracy trials, and was kind enough to show us two courtrooms which are currently being used for piracy prosecutions. (at left, front of Supreme Court, among the oldest buildings on Mahé, the Seychelles' largest island, on which is located the capital, Victoria; and Mike Scharf and I at the Court)
We explored the possibility of future assistance by PILPG to the Seychelles’ judiciary, in the form of amicus briefs or other research memoranda useful to support judges in their efforts to preside over piracy trials.
The trip was successful, and it will be my pleasure to report more on the topic of Somali piracy upon my return to the United States.

National anti-piracy laws needed

(Many thanks to IntLawGrrls for the generous invitation to contribute this guest post)

The number of maritime piracy attacks is spiraling ever-upward, pirates are increasingly using violence to carry out their attacks, and pirates are demanding more and more money for the safe release of their captives. Between 2006 and 2010, the number of yearly pirate attacks reported to the International Maritime Bureau, a 20-year-old, London-based division of the International Chamber of Commerce, almost doubled. (chart credit)
Not only did pirates attack ships, but in 2010, pirates took hostage an unprecedented 1181 seafarers—eight of whom pirates murdered. Moreover, maritime pirates are getting paid huge sums for their violent activities: average ransoms are estimated at between US$2 million and US$3 million.
This is a discouraging trend, especially because over the last several years, the international community has spent billions of dollars to support naval fleets that patrol pirate-infested waters with the goal of repressing piracy. While these naval fleets have thwarted some attacks and captured some pirates, the evidence about the increasing frequency of maritime piracy attacks suggests that the full deterrent effect of these naval resources is not being realized.
Instead, a culture of impunity reigns.
Consider this statistic from the report by Jack Lang, Special Advisor to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, which was delivered in January to the U.N. Security Council: About 90% of captured pirates are being released rather than prosecuted.
One reason cited for this culture of impunity, which I examine in my article “Maritime Piracy And The Impunity Gap: Insufficient Nationals Laws Or A Lack Of Political Will?”, forthcoming in Tulane Law Review, is the purported absence of domestic legislation to facilitate piracy prosecutions.
But, why would states lack domestic anti-piracy legislation?
After all, universal jurisdiction over piracy has existed for more than 100 years, meaning that states can prosecute pirates who attack on the high seas even where the attack does not involve the state’s citizens as either perpetrators or victims. In addition, most states are parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which codifies piracy’s status as a universal jurisdiction crime and which encourages states to cooperate in the repression of piracy to the fullest extent possible.
Yet, the anecdotal evidence suggests that states have not enacted piracy laws consistent with this international legal framework. In fact, since the passage of Security Council Resolution 1918 (April 27, 2010), and through to Resolution 2015 (October 24, 2011), the Council and other international actors have called on states to rectify the present culture of impunity by criminalizing piracy under their national laws and by considering favorably the prosecution of piracy suspects.
In an effort to determine what might be lacking in state anti-piracy laws and to contribute to the discussion of how to end the culture of impunity that surrounds piracy, in the forthcoming article, my article analyzes the nature of domestic anti-piracy laws in states for which I was able to obtain information in English. The chart below shows the states included in the sample and organizes them by type of piracy laws (or lack thereof):


Overall, my analysis supports a conclusion consistent with the Security Council’s observation that states generally lack domestic piracy laws consistent with customary international law and UNCLOS.
► For example, even where they have enacted a specific anti-piracy law—and are not relying only on general categories of crime such as robbery, assault, or murder—many states still tend to require some nexus between the state and the crime in order to exercise jurisdiction.
In fact, as the chart above shows, at most fifteen of the states surveyed specifically define piracy using UNCLOS or some other formulation, and also provide for the exercise of universal jurisdiction.
► In addition, the analysis shows that even some of the universal jurisdiction anti-piracy laws may not be sufficient to successfully prosecute pirates.
Rather than tracking UNCLOS’s language, some laws provide broadly for universal jurisdiction “as defined by the law of nations.” Because that definition does not outline the elements of a piracy offense, however, some courts may conclude that certain acts—such as attempted, but not completed, attacks on ships—are not covered and cannot be punished. Indeed, as IntLawGrrls then posted, this was the conclusion of the U.S. District Court in United States v. Said, 757 F. Supp. 2d 554, 566 (E.D. Va. 2010).
The state laws that rely on the direct incorporation of treaty provisions have similar deficiencies. The very absence of domestic legislation defining the precise contours of the crime and its penalties renders it possible for alleged pirates to argue that they should not be punished, because they have not been provided with advance notice of exactly what conduct is proscribed.
It is true that piracy cases may result in claims for asylum, can be costly, require the state to expend prosecutorial and judicial resources that could otherwise be deployed to handle domestic crimes, and can involve significant evidentiary difficulties. But, I argue that states should not be able to so easily shirk their duties under UNCLOS to cooperate to the fullest extent to repress piracy.
Piracy is a universal problem that harms the international community as a whole. (credit for UN photo) If the world community wants to halt the increasing threat posed by maritime piracy, then all states must embrace their duty to share in the burden of prosecuting pirates, which means that all states must first pass the necessary domestic laws authorizing the exercise of universal jurisdiction over piracy offenses.

An ITLOS first

At the beginning of this month Elsa Kelly (center) of Argentina was sworn in as a judge of the International Tribunal for the Law of the Sea, based in Hamburg, Germany.
A look at the roster of all who've served there since the founding in 1996 indicates that Kelly is the 1st woman ever to serve as an ITLOS judge.
Kelly received a law degree in 1960 from the University of Buenos Aires, in the same city where she'd been born 21 years earlier; in the 1968 academic year she did postgraduate studies in jurisprudence at the same university, where subsequently she became a Professor Public International Law. In 1977-1978 she studied as a Fellow at Harvard's Center for International Affairs.
In the course of her service in the Legal Advisor's Office of Argentina's Ministry for Foreign Affairs, Kelly was the Deputy Head of the Argentinian delegation to the Third U.N. Conference on the Law of the Sea -- after which she served for a year as the Ministry's Legal Advisor. Among her many other government and international law positions: 1st woman to serve as Secretary for Foreign Relations; Argentine Ambassador to Italy; 1st Vice President of the Inter-American Commission of Human Rights; and Argentine Ambassador to Austria and Permanent Representative of Argentina to the U.N. Office in Vienna, a post that included membership on the Board of Government of the International Atomic Energy Agency.
Kelly joins 20 other members of the law of the sea tribunal, including 2 sworn in at the same time as Kelly: Dr. David Attard, a law professor at the University of Malta, to her left in the picture above, and Dr. Markiyan Kulyk, most recently Ukraine's Ambassador to Romania, to her right.(photo credit)

Heartfelt congratulations!

OT '11

Once again it's the 1st Monday in October -- the day that the U.S. Supreme Court opens its October Term 2011. (photo credit)
Issues in cases to be argued include Medicaid regulations, sex-offender registration, religious freedom, assistance of counsel after conviction, and suspicionless strip searches. A global copyright case set for Tuesday presents a question intriguing to international lawyers:

Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

That's just this week.
By Term's end, probably the last week of June 2012, we'll have a good idea of each party's nominees to run for President and Vice President in November. By then the Court may have decided a number of cases sure to push buttons among the electorate. Many of these potential judgments would concern issues of rights -- and thus would constitute evidence of state practice of interest to international lawyers no less than to American voters.
Examples (drawn from this report from Robert Barnes of the Washington Post), as well as this SCOTUSblog roundup of pending cert. petitions) of issues that the Court has been or is likely to be asked to review this Term:
► Does the Constitution allow all provisions of the 2010 federal health-care overhaul -- a statute that's the product in part of a "health is a human right" plank in the 2008 Democratic platform?
► Are all provisions constitutional in the tough state immigration law passed by Arizona (prior IntLawGrrls posts available here) -- a law since copied by other states?
► Can a state bar unmarried opposite- or same-sex couples from adopting children or serving as foster parents?
► Can a corporation be sued, in U.S. courts pursuant to the Alien Tort Statute, for torts in violation of the law of nations? (Petitions for certiorari in Bowoto v. Chevron and Kiobel v. Royal Dutch Petroleum Co., cases we've tracked in prior posts available here, were to have been considered by the Court on Friday.)
► May a state extend, beyond a 3-mile territorial-water limit, its environmental requirement that foreign- and U.S.-flagged ships use low-polluting fuels?
► What is the proper way to litigate survivors' claims for Nazi-looted art now in museum collections? (Grosz v. Museum of Modern Art, on which we've posted here and here, also was on Friday's Conference docket.)
OT '11, as insiders will call it, well may prove to be one for the books.

Chamber advises caution in seabed mining

(Thank you, IntLawGrrls, for the opportunity to contribute this guest post)

A new Advisory Opinion on Responsibility and Liability for International Seabed Mining from the Seabed Disputes Chamber of the Hamburg-based International Tribunal for the Law of the Sea advises countries interested in sponsoring commercial mining in international waters that they can limit their liability for accidents, but that they will have to consider the precautionary approach, global commons interests, and the evolution of international law in light of new scientific information.
Small island states interested in sponsorship requested this advisory opinion before they undertook to sponsor mining companies based in Canada and Australia.
This February decision was the first to be issued by the Seabed Disputes Chamber, which was established by the UN Convention on the Law of the Sea. The opinion clarifies a number of issues specific to a state’s obligations and liability for harm that might result when it sponsors commercial deep seabed mining in a zone of international waters designated “the Area.” It also offers much of more general interest, particularly in its application of the ILC Draft Articles on state responsibility.

The Chamber’s thoughtful decision should encourage states to have confidence in the Tribunal and its Chamber.

The increasing value of metals that are found on the deep seabed has given rise to greater commercial interest in mining in international waters, more than 200 miles offshore and at as much as 6,000 meters (18,000 feet) below the sea surface. (credit for above right photo of seabed diamond-mining vessel) Access to these resources is implemented through a regime managed by the Jamaica-based International Seabed Authority, which, the Chamber observed, “acts on behalf of mankind.” Under this system, a government can sponsor a company to explore and mine some international waters. The United States, not having ratified the law of the sea convention, is not part of the regime.
If a state adopts appropriate measures, Article 139 of the convention exempts that state from liability for catastrophic harm to the ocean or seabed caused by a company that it sponsors. However, the Chamber advised that to obtain this protection the sponsoring state must satisfy its “due diligence” obligation to make best possible efforts to secure compliance by the sponsored contractors. What is required of due diligence varies according to the state of scientific and technological knowledge and the risks of the activity. It includes the adoption of laws, regulations, and administrative measures in the state’s domestic legal system that are both:
► As stringent as those established by the International Seabed Authority; and
► As effective as international standards.
States must apply a precautionary approach as an integral part of their due diligence obligations

in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.

Disregarding such risks would constitute a failure of due diligence. The Chamber observed that a growing number of treaties have “initiated a trend” to make the precautionary approach part of customary international law. (This advisory opinion adds one more example of opinio juris to that development.)

In addition, the mining regulations governing prospecting and exploration for polymetallic nodules and sulphides explicitly require states and the International Seabed Authority to apply Rio Declaration Principle 15. That formulation requires that

where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In a variation on the principle of “common but differentiated responsibilities,” Nauru, a small Pacific island state, had proposed that UNCLOS provisions intended to encourage developing state participation require it to observe a lesser standard of obligation than required of developed countries. Nauru argued that it could not risk the potential cost of a disaster, and so would be unable to gain the benefits from deep seabed mining promised to developing states in the convention. In this Advisory Opinion, the Seabed Disputes Chamber stated that sponsoring state obligations apply to both developed and developing countries, although “rules setting out” direct obligations could differentiate. The Chamber also noted that Rio Principle 15 may suggest a different standard, as that principle includes the proviso that the precautionary approach is to be applied according to the capabilities of the state.
While obligations and liability rules are established by the convention and related instruments, the consequences are governed by customary international law. Citing the ILC’s codification of customary law, its Articles on State Responsibility, Article 48, the Chamber indicated that obligations to preserve the environment of the high seas and in the Area may be erga omnes; that is, owed to the international community as a whole or “to a group of States [if the obligation] is established for the protection of a collective interest of the group.” The Seabed Authority might be able to claim compensation on behalf of the international community, along with parties to UNCLOS, “entities engaged in deep seabed mining, other users of the sea, and coastal States.” Though the Chamber does not mention it, other forms of enforcement may also be open to the international community.
Some failures of state oversight that contributed to the Deepwater Horizon disaster in the Gulf of Mexico (prior IntLawGrrls posts available here) are addressed by the Chamber. They include:
► The obligation of Environmental Impact Assessment;
► Raising of the performance standard from “best technology” to “best environmental practices”; and, in the aftermath,
► Ensuring access to compensation.
Referring to the 2010 judgment of the International Court of Justice in Pulp Mills (discussed here), the Chamber stated that Environmental Impact Assessment is both

a direct obligation under the Convention and a general obligation under under customary international law.

The rejection of the argument that states that sponsor mining operations bear residual liability for any damages not compensated by the mining company leaves an important gap in liability.
Other international liability regimes are structured in a similar way, which made sense in an “empty world”. In today’s “full world”, if the cost of environmental damage is not paid by those who expected to profit from the harmful activities, it will be paid by the international community.
The Chamber suggested that a possible solution could be the establishment of a trust fund.
Such funds have at times been successful, as in the case of the International Oil Pollution Compensation Funds. But the slow progress on climate change funds is an example of the problems.
The Chamber’s invocation of Article 304 of the law of the sea convention, which refers to the development of further rules governing responsibility and liability for damage, and its linkage of rising environmental standards to increased scientific knowledge leave the door open to a more protective stance in future contentious cases and provides important guidance to the International Seabed Authority.
The Chamber provided a degree of access to nonstate participants.
Under the rules applicable to the Chamber’s advisory jurisdiction, “intergovernmental organizations which are likely to be able to furnish information on the question” may be invited to participate.
On that basis, the Chamber invited all observers to the International Seabed Authority Assembly to submit written and oral statements. The participation of the International Union for Conservation of Nature, on behalf of which I appeared in these proceedings, along with members of the UN family: UNESCO’s Intergovernmental Oceanographic Commission and the UN Environmental Programme, occurred on this basis.
Two nongovernmental organizations, Greenpeace International and the World Wildlife Fund, jointly submitted a statement and a request to participate in the proceedings as amici curiae. The Chamber considered the request and decided to post the statement on its website, but as the Rules of the Tribunal do not provide for amicus participation, did not include their statement in the case file. The NGOs were not allowed to participate in the oral proceedings.
The Advisory Opinion, written statements, verbatim record of oral statements, and webcast of oral statements are all available here.

Guest Blogger: Caitlyn Antrim

It's IntLawGrrls' great pleasure to welcome Caitlyn Antrim (left) as today's guest blogger.
Caitlyn's the executive director of the Rule of Law Committee for the Oceans and publisher of the "Ocean Law Daily," a newsletter focused on the U.N. Convention on the Law of the Sea, its relation to U.S. national interests, and prospects for approval by the U.S. Senate. She discusses those prospects in her guest post below.
Caitlyn began studying law of the sea under Harvard Law School Professors Louis Sohn and Richard Baxter at the same time she was earning the professional degree of Environmental Engineer at the Massachusetts Institute of Technology. She credits this dual track for preparing her for translating and mediating between lawyers and engineers, developed and developing countries, and other cultural clashes in international ocean and environmental policy debates.
After graduation she joined the government, representing the Commerce Department and NOAA, the National Oceanic and Atmospheric Administration, on the U.S. delegation to the Law of the Sea Conference. Since then, she has served on delegations and secretariats at the U.N. Conference on Environment and Development and the Convention on Drought and Desertification. She's also worked for the Congressional Office of Technology Assessment, the American Academy of Diplomacy, and the National Academy of Sciences, all the while keeping involved in the progress of the law of the sea convention.
Caitlyn has published articles on law of the sea, strategic minerals, negotiation theory and practice and, most recently, the emerging regime for the Arctic. A loyal blogreader, Caitlyn nominated an IntLawGrrls transnational foremother years ago: Dr. Grace Murray Hopper (right) (photo credit), a Navy officer who developed the computer language COBOL.
Heartfelt welcome!

UNCLOS needs bipartisan push

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.

Guest Blogger: Betsy Baker

It's IntLawGrrls' great pleasure to welcome Dr. Betsy Baker (left) as today's guest blogger.
Betsy is an Associate Professor and Senior Fellow for Oceans and Energy, at the Institute for Energy and the Environment of Vermont Law School, home institution of IntLawGrrl Stephanie Farrior. Betsy teaches in the comparative law and international organizations curriculum, with emphasis on her area of special expertise -- the environment, law of the sea, and the Arctic. She served as a 2009-2010 Research Fellow at Dartmouth College's Dickey Center for International Understanding and Institute of Arctic Studies. She's also been a member of the science crew of the Healy, the U.S. Coast Guard's newest polar icebreaker, on deployments for State Department-sponsored mapping of the United States' Extended Continental Shelf in the Arctic Ocean. Betsy operates her own blog, entitled Arctic Mapping and the Law of the Sea.
She earned doctoral and master of laws degrees from Christian-Albrechts-Universität zu Kiel; while in Germany, she worked as legal historian at the Heidelberg Academy of Sciences and was affiliated with the Max Planck Institute for Comparative Public Law and International Law. Betsy, who clerked for Judge John T. Noonan, Jr., U.S. Court of Appeals for the Ninth Circuit, also holds a J.D. from the University of Michigan and B.A. from Northwestern University. She was a Lecturer on Law and Assistant Dean for the Graduate Program and International Legal Studies at Harvard Law School before joining Vermont's faculty in 2007.
In addition to these SSRN-posted publications, Betsy's scholarship includes examinations of proposals for Canadian-US cooperation in maritime issues and the law-science interface in environmental treaties and legislation. In her guest post below, she considers the newly announced U.S. ocean policy in light both of international law and the oil spill off the Gulf of Mexico.
Heartfelt welcome!

Write On! IHL Yearbook

(Write On! is an occasional item about notable calls for papers.)

The Yearbook of International Humanitarian Law invites submissions of manuscripts on international humanitarian law. Sponsored by the Hague-based T.M.C. Asser Instituut (prior IntLawGrrls post), this peer-reviewed Yearbook is published annually by T.M.C. Asser Press/CambridgeUniversity Press.
Although papers on any topic related to international humanitarian law are welcome, the editors are especially interested in receiving submissions on the principal theme of their next issue, Volume 13 [2010]. The theme is "Maritime Operations" -- inspired, of course, by recent piracy news, yet broader in its potential scope. Topics might include:
► The applicability of international humanitarian law during counter-piracy operations;
► Detention during maritime operations;
► Maritime security zones;
► Blockades;
► Maritime operations during non-international armed conflicts; and
► Protection of the environment during maritime warfare.
The Yearbook also accepts both articles (ballpark range of 15,000-20,000 words, including footnotes) and shorter pieces on any current development in international humanitarian law. These current developments pieces, which are not limited to the volume's principal theme, typically address international humanitarian law issues that have arisen during the year, including, for example:
► Codification;
► Important publications; and
► Decisions of courts and tribunals.
Submissions should be sent by December 2010, via e-mail to the Yearbook's Managing Editor, Dr. Louise Arimatsu (left), Department of Law, London School of Economics, at l.arimatsu@lse.ac.uk. Questions may be addressed to her or to the Yearbook's Editor-in-Chief, Professor Michael N. Schmitt, Durham Law School, at michael.schmitt@durham.ac.uk.

Review of Cultural Heritage

(IntLawGrrls is pleased to welcome back Jennifer Kreder, who contributes this guest post stemming from her work on issues related to cultural property)

The American Society of International Law Interest Group on Cultural Heritage & Arts, for which, as posted, I am a co-founder and serve as co-chair, has released the very first issue of the Cultural Heritage & Arts Review. In it you'll find a rich variety of articles, among them "High Seas Shipwreck Pits Treasure Hunters Against a Sovereign Nation: The Black Swan Case," by attorney Kimberly Alderman (right), "The UK’s Holocaust (Return of Cultural Objects) Act of 2009," by University of Derby Lecturer Charlotte Woodhead (left), "Should Cultural Heritage Be on the Judicial Auction Block?" by attorney Laina Lopez (below right), a Co-Vice Chair of our Interest Group, and "Heritage Watch Acts to Protect Cambodian Cultural Heritage," by Terressa Davis, an Executive Consultant to the Association for Research into Crimes against Art and a Review editor.
To access these and the many other articles in this 1st edition, click here to open the Review in Acrobat Reader, go to the Table of Contents page, click on "View" in the toolbar, then "Navigation Panels" in the 1st popup box, "Bookmarks" in the 2d.
A limited high-quality print edition will be available soon. Please contact yours truly at krederj1@nku.edu if you'd like to place an order.
Our Interest Group's March panel discussion on Cultural Heritage and the Arts Interest Group: Wrestling the Dead Hand of History: Perspectives on a Proposed State Department Commission on Nazi Looted Art, which I previewed in an earlier post, was a great success (as I detail in another Review article). If you missed it, it's available on tape by searching for the panel title here.

We are recruiting for editors and writers for the Review's next issue, to be published in the Fall. Please contact me if you're interested in contributing.

To join ASIL and our new Interest Group, click here.

Precautionary principle, anyone?

2 things jump to mind about the "Swamp Tour" my family and I took years ago through Louisiana's bayous:
► Try though we did, none of us caught even a glimpse of a 'gator.
► Even back then, those wetlands were mighty fragile.
Today the bayous that buffer New Orleans from the Gulf of Mexico are under siege. More than 200,000 gallons of oil a day are spewing into the Gulf as a result of an offshore rig explosion on April 20. (prior post) That's 4 million gallons and counting.
Already the environment is harmed. Tar balls, "sticky, dark-colored blobs," are washing up on beaches. So too dead animals -- turtles, fish, dolphins. Fishing families are out of work. These and other effects will be felt for years.
Nor is any sure solution in sight. Rather, as Rebecca posted, what's heard is one "Maybe this'll work?" after another. Televised computer-modeled animations of the (to date, failed) efforts make MouseTrap (left) look like serious business.
Odd, then, that not much seems to have been said so far about the precautionary principle.
As international environmental lawyers well know, that principle has origins from this passage in the 1992 Rio Declaration on Environment and Development:

Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In essence, the precautionary principle is a call for recalibration of cost-benefit analysis. When failure of an activity would cause a truly dire catastrophe, even the remotest possibility of that result requires the exercise of extra-special care. It's a rule of risk aversion.
But it can be costly, for its application may bar the activity, altogether or at least for the foreseeable future. And if the activity is something like drilling for oil, that obstacle means higher prices and lost profits.
Not surprising, then, that although the precautionary principle has retained some currency, it has not won full embrace.
It's positive law in City of San Francisco, but pretty much nowhere else in the United States. Westlaw cites only 10 federal cases that have used the term; none has applied it as a justiciable legal norm. Here's perhaps the fullest discussion, an explanation of why the court rejected a motion to dismiss that had invoked the principle:

The Plaintiffs' claims were based on the European Council's “Precautionary Principle” and the European Commission's “Science and Society Action Plan.” Neither document has been incorporated into domestic law, by international treaty or otherwise.

Sancho v. U.S. Dept. of Energy (D.Hawai‘i 2008).
And though the principle has applicability with regard to food, health, and the environment in the European Union, elsewhere abroad there's hesitation. What in 1992 was a "principle" has since been given a more discretionary phrasing -- "precautionary approach" -- by entities as varied as the International Law Commission, the International Tribunal of the Law of the Sea, and the WTO Appellate Body. (On the "subtle, but important, difference" between these terms, see Caitlyn's comment below.)
Approach? Principle? Whatever, the underlying idea seems like one that deserves consideration as the country reconsiders drilling in the wake of the Gulf Coast disaster. To be debated? A policy of requiring extra care before giving the go-ahead to something, when failure would cause damage too big to contain.
Call it Too Big to Fail.