The Pacific Business News published an Op-Ed I drafted on International Law and Somali Piracy. (PBN has published here).
My text is repeated below:
Until recently, we viewed “piracy” to be teenagers downloading internet songs or copying a DVD. Now, armed hijackings, crews and cargos held hostage in the Gulf of Aden bring real piracy to the forefront. Modern pirates sail “go-fasts” and instead of cutlasses or flintlocks, they are armed with AK-47s and rocket-propelled grenades.
For 18 months, Somali pirates with easy access to a major international shipping lane have attacked merchant ships, including, in April, a U.S.ship carrying humanitarian cargo. The captain was taken hostage and was rescued by the U.S. Navy. Somali pirates have grabbed the world stage when coastal nations’ stability is threatened by global financial crises. Other criminal organizations, to include terrorist ones, are assuredly watching these events and considering piracy as a revenue source. To date, world naval powers, especially the United States, are understandably reluctant to exercise criminal jurisdiction over bandits, yet it is overdue.
Realistic responses to piracy involve multi-national military and law enforcement intervention. The United Nations International Maritime Organization currently discourages carriage of firearms on merchant vessels and potential gunfights may trouble insurance companies. Professional security and non-lethal technology could prove too expensive for smaller vessels. Avoiding the Gulf of Aden altogether will substantially drive up shipping costs.
The U.S. Congress has enacted domestic and international piracy laws through powers granted by the Constitution “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Under the Law of the Sea, piracy is a universal crime and any nation can prosecute pirates. The U.S. recognizes the Law of the Sea treaty provisions on sea and air piracy as “customary international law,” but it has never ratified the treaty.
The case of Shi Lei, which touches Hawaii, is an example of how the U.S. legal system, through an international agreement, resolved an international crime. U.S. authorities apprehended Shi Lei, a Chinese cook, killed the captain and first mate, then took control of the Seychelles-flagged, Taiwanese-owned fishing vessel Full Means No. 2.
Shi Lei’s crime was not traditional piracy. However, the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaty extends coastal countries’ jurisdiction to prosecute certain crimes on the high seas. The U.S. is a signatory with the necessary domestic law required by the treaty. So, Shi Lei was prosecuted in Honolulu.
The U.S. provided Shi Lei with a defense attorney. He was prosecuted, convicted and, exercised his right to appeal, even to the U.S. Supreme Court. In this case, the U.S.established that its legal system can assist in peaceable, fair resolution of matters arising outside any nation’s territory.
The United States should use its international stature to develop agreements that both protect national interests and ensure a legal framework to address emerging transnational issues like piracy, environmental protection and Arctic warming. The Senate should ratify the Law of the Sea treaty. And, the legal infrastructure of U.S. coastal states, like Hawaii, should be ready to resolve inevitable civil and criminal maritime issues.