Parrots and the Jolly Roger

Piracy is back in the news, and it’s not the intellectual kind. This is great for admiralty professors, and so I thought I’d take advantage of this brief moment in the sun to talk about some general legal issues involving pirates before discussing the ones operating off of Somalia.

Since ancient times, pirates have been considered public enemies under customary international law. This meant that ships were free to use force on the high seas to repel or capture pirates. Indeed, the phrase “public enemies” is still used in maritime contracts as a justification for non-performance in the event of a pirate attack. National governments sometimes authorized privateers to attack enemy merchant ships with letters of marque (the Constitution empowers Congress to issue these in Article One, Section Eight) but these immunity grants from domestic piracy prosecution have not been issued for decades.

Because piracy was difficult to deter, the law turned to the proverbial carrot and stick. For most of our history, piracy against American vessels or committed by Americans was a capital crime. Indeed, a fascinating case that I use in class is United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), in which Chief Justice Marshall and Justice Johnson debated whether the federal statute at the time made piracy without murder a capital offense. (This is a wonderful case for those of you who are interested in contrasting methods of statutory interpretation.) On the civil side, the law of “maintenance and cure” provided that a crew member who was disabled defending a ship against a pirate attack was entitled to a lifetime of medical care, whereas normally injured sailors were entitled to nothing after the voyage ended.

With respect to the pirates in Somalia, two points stand out. The first is that there is some ambiguity in international law about what nations can do to suppress piracy within territorial waters or on land. While a country that harbors pirates can be sanctioned (much like a country that hosts terrorists), it is not clear that a casus belli exists just because pirates are there. Granted, one could make a powerful argument (at least it sounds good to me) that Somalia has not had a government for nearly twenty years, and thus there is no sovereignty to violate. Nevertheless, this legal issue might explain the lack of action so far.

The other point is political. My sense is that the real reason that no action is being taken against the pirates is that they are, sad to say, the only alternative to the radical Islamist movement in Somalia. Indeed, Ethiopia invaded the country a few years ago to prevent the creation of an Islamist there, and the pirates took advantage of the resulting vacuum to establish themselves. Does anyone want to eliminate the pirates and see what would happen next? I doubt it.

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