Kontorovich on Piracy and the Failure of International Law

Professor Eugene Kontorovich spoke here at Tulane Law yesterday at the invitation of the Federalist Society.  You may recognize Kontorovich, a professor of law at Northwestern, from his stint guest blogging on piracy issues last year at Volokh Conspiracy.

Peppered with dry humor, his crisp remarks outlined the inability of international law to address adequately the surge in Somali piracy.

He noted that despite the UN authorizing force against pirates in Somalia under Chapter 7 in four separate resolutions in 2008 (some of them unprecedented in scope), no countries have actually taken advantage of the authorization.  None of them, he notes, want to be stuck with the pirates on their hands because international law makes it unclear, even with universal jurisdiction, whether a nation would be in violation of the Geneva Convention or other international treaties.  And this is despite a sizable armada sent by a "coalition of the willing" to the Gulf of Aden.

Kontorovich also highlighted the signficance of the international fleet.  It marks the first Chinese naval deployment outside of its region in over 500 years - something that would normally be of major concern to the U.S.  It also saw the German and Japanese navies testing their constitutions by sending offensive naval forces out for the first time since World War II.  Really, the professor mused, the piracy surge crisis "had everything George W. Bush wanted to fight terror" - a truly global coalition, UN authorization for use of force, and a clear set of "enemies."  Even still, piratical attacks have doubled since the force moved into the region.

Today, Kontorovich asserted, "a few thousand lightly armed bandits" have all the legal advantages of both criminals and combatants, something pirates most certainly did not have when they were hunted down by the British navy and simply blown out of the water.  Today, nations are afraid to capture or try pirates due to the bar of non-refoulement, which precludes a capturing or trying state from returning the accused back to a state that would torture or imprison them.  This includes European Union states that, Kontorovich noted wryly, argue most loudly that the U.S. should use civil trials for Guantanamo detainees.

In the meantime, with capturing navies dropping pirates off in Kenya to face the Kenyan judicial system (which has its own problems) he foresees a problem under Article 105 of UNCLOS, the Law of the Sea Treaty.  The article appears to indicate that a capturing state, to employ universal jurisdiction against pirates on the high seas, must try the pirates in its own courts - not in the third party system of, say, Kenya.  Indeed, he noted that some of the captured pirates have been raising this very argument.

Overall, the professor rounded out his informative presentation by pointing to the disconnect between international rhetoric/will/intent and the actualization of measures designed to fight the rise in piracy off Somalia.  While international law doesn't seem to be doing the trick, professor noted in followup questions that no vessel with private armed guards onboard had been captured by pirates in the past few years.

*Background artwork in the photo above by the late Elmore Morgan of Lafayette.