Legal Commentary

I just got back from the American University Law Review's spring symposium on combatting piracy, "Troubled Waters."  In all, an outstanding event, with a great mix of scholars and policymakers, and the student editors as usual did a fantastic job of bringing things together.  I look forward to the posting of podcasts from the event here.  Perhaps a few too many Jack Sparrow references, but I was responsible for at least one.

The day's first panel included an interesting discussion of the current international law definitions of the crime of piracy, drawing on the UNCLOS definition in article 101: "any illegal acts of violence or detention, or any act of depredation, committed for private ends" on the high seas by one vessel against another. The article also criminalizes "any act of inciting or of intentionally facilitating" the acts described.

In questioning, I asked panelists to consider whether the language of UNCLOS article is sufficiently broad to allow intervention prior to the actual assault of pirates against an underway vessel.  Would-be pirates on a skiff might simply be fishermen with AK-47's until they actually attempt to detain a vessel; that is, until a warning shot is fired or a grappling hook goes over a target ship's rail. Are anti-piracy efforts constrained by the lack of a clear concept of "attempted piracy," perhaps involving a requirement of specific intent and an overt act like carrying unnecessary weapons (RPGs to fish for Tilapia?) into shipping lanes?  A Coast Guard lawyer on the panel suggested that the language of "depradation" and "intentional facilitat[ion]" might be broad enough to allow for prophylactic detention of would-be pirates.    He indicated that the Coast Guard has long sought to identify "signs" of potential criminal activity for drug traffickers, like carrying excessive amounts of fuel while underway.