Amidst news-grabbing assaults on cargo vessels near Somalia over the past couple years, many U.S. maritime lawyers have found themselves fielding cocktail party inquiries about law governing “piracy” from friends and colleagues. America’s romanticized notion of yesteryear’s swashbuckling folk heroes has long since transcended mythological proportions, and has been ingrained in our sense of daring and adventure. What better way to lull a wide-eyed child’s bedtime imagination than to read stories of bandana-headed, patch-eyed, hook-armed, peg-legged buccaneers? And what’s really been in the headlines since Blackbeard’s day to change that notion?
The fact is that only in the rarest situation will a maritime attorney ever encounter a piracy issue in contemporary practice. Few of us have ever needed to learn the topic’s specifics, and what legal recourses are available when it is encountered. That’s not to say incidents of piracy are rare or inconsequential. To the contrary, ocean muggings have been around forever. It’s just that few instances produce civil or even much criminal litigation in the United States. Roving sea bandits just don’t make good defendants to try to collect court judgments from.
But when significant trades, life and limb of crewmembers, and regional stability are assaulted on an ongoing basis, the topic becomes newsworthy, even if an understanding of its legal underpinnings has minimal utility to legal practitioners and the actual movement of freight by our industry. And besides, transportation law commentators like this one like to have fun every once in a while. Thus, this article.
The U.S. District Court for the Eastern District of Virginia recently issued a fascinating opinion that explains the law of piracy, presenting the history of how America and the international community treat this perennial crime from the jurisprudential perspective. The effects of rampant piracy off Somalia’s coast on commerce and security is well known, but the incident at issue here involved not the deftest of sea-going bad guys the millennia have seen. In this case, a group of thugs, firing assault rifles from their skiff, approached what they believed to be a cargo-laden merchant vessel fit for looting. Imagine their surprise when they learned their intended prey was the USS NICHOLAS, a heavily armed U.S. Navy frigate. They soon found themselves stateside represented by counsel tasked to defeat Uncle Sam’s charge of piracy.
Piracy clearly is on the U.S. books as a federal crime punishable by life imprisonment. But was this an act of piracy? Does a failed attempt by hapless hooligans who mistakenly target a warship with intentions of plundering a commercial vessel count as an act placing its perpetrators within the ranks of some of the world’s most despised criminals, or as the court phrased it, “hostis humani generis-enemies of all mankind?” To answer that, one must first define what piracy is.
Those U.S. law books state that the “crime of piracy” is one “defined by the law of nations …,” or what’s known as “general piracy.” Actually, there’s a second species called “municipal piracy,” which involves violations of a country’s specific domestic laws, but that hasn’t come up much in the last couple centuries. Congress has enjoyed power since 1787 under the “Define and Punish Clause” of the U.S. Constitution’s Article I to characterize the crime and penalize those who commit it. Statutory wording places international understanding, consensus and application of piracy concepts at the heart of what constitutes a piratical act. Uncle Sam is empowered to enforce violations of such law committed by or against his citizen subjects anywhere on Earth based on the internationally recognized doctrine of “universal jurisdiction.”
Federal case law narrows the jurisdictional doctrine’s applicability to events including “a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.” But that restriction alone doesn’t make the extent of the U.S.’s jurisdictional grasp crystal clear. How far does it go, and what constitutes an act of “piracy” that would implicate it? To answer that, the court started with Congress’s first piracy legislation, the Act of 1790, which defined “piracy” to include an act of robbery, which most attacks did and still do. A couple subsequent legislative pronouncements through 1820 (broadening enforcement and encompassing slave trade activities), and codification of the law at 18 USC §1651, et seq, followed.
This crime’s nearly unique feature is that its definition derives from what the international community considers “piracy.” In 1958, the United Nations adopted the Geneva Convention on the High Seas which broadly includes any “acts of violence, detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft …” with certain qualifiers. In 1982, the U.N. adopted the United Nations Convention on the Law of the Sea (UNCLOS) which amended the 1958 treaty. While the U.S. has not signed or ratified UNCLOS because of disagreement with its deep seabed regime, it has accepted and applied most of the treaty’s other provisions as international law.
In this context, the defendants asked the court to dismiss the charges of piracy against them on the ground that traditional and historic notions of the crime require a “robbery” at sea. While they may have intended to loot a merchant ship, the misguided perpetrators urged their innocence because, hey, we didn’t steal anything! U.S. case law since the early 19th Century has included an unlawful taking of property as a definitional element of piracy, and unchanged law remains in force. The government responded by pointing to a new era whose evolved understanding of “piracy” doesn’t necessary include plunder.
In resolving this question, the court asked whether the definition of “piracy” can “evolve” over time without legislative action in a way that would empower the U.S. to punish violators for acts that essentially “have become” piracy. The defendants pointed out that U.S. criminal statutes must be interpreted according to their meaning when written, and we can’t have that meaning, and therefore what constitutes a crime potentially punishable by life in the slammer changing willy-nilly based on amorphous international trends.
Whenever you affix “international norms,” which are subject to, if not defined by, the vicissitudes of progressively developing human nature, to a term’s meaning, you almost necessarily embrace an evolving understanding. For better or worse, technologies, societies, cultural interrelationships, international treaties and the law itself are fluid. True, a precept of law, especially criminal law, is that society should enjoy the benefit of clearly enunciated rules which a particular court or jury can’t easily alter based on divergent attitudes, understandings and passions. That’s a big reason why most laws aren’t crafted to be subject to circumstances not discernible to potentially affected players at the time they consider how to behave.
But piracy is different, if not altogether unique. U.S. law is specifically designed to interpret was constitutes piracy based on evolving world views for a reason. This crime isn’t conceivably subject to unwitting commission by a well-meaning innocent. You don’t accidentally attack, illicitly board, or certainly fire upon a vessel not knowing that your behavior is abhorrent. Like most all nations, the U.S. has historically chosen to side with mankind’s disdain for ocean banditry, and for centuries we’ve been prepared to defer to the community of nations to determine our legal application of this crime’s parameters.
A review of hundreds of years of federal case law supports this determination. For instance, it used to be that the slave trade was business as usual throughout the world, and carriers of human cargo enjoyed the same legal protection as any. Precedents and common sense show that such trends can be universally rejected by the law of nations, and thus become illegal acts of piracy without promulgation of specific new law or treaties.
Yes, the definition of piracy can and does evolve based on what the world perceives it to be, and the court ruled accordingly. Courts must interpret, perhaps on an ad hoc basis, whether a particular event constitutes a piratical act. That doesn’t mean judges get to create new law as they go along, a notion the law rejects. As the Eastern District of Virginia put it, “[i]nstead, it means only that courts are recognizing that which has already been accepted by an overwhelming majority of countries as the definition of piracy, and courts must be careful to do so only when it is, in fact, clear that an overwhelming majority of countries have definitively accepted such a definition.” This is embodied in the somewhat nebulous concept of “customary international law,” which includes rules and precepts the world must “universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Trends in treaties (such as UNCLOS), as well as the activities of courts and other tribunals the world over, suggest the world wants a vessel assault with intent to commit robbery to be an act of piracy even if nothing is taken. UNCLOS’s adoption by Somalia and all countries bordering it strongly supports this conclusion in the context of the alleged act at issue here.
These defendants will stand trial in the U.S. They should not expect to find the court’s solace in any romanticized American notions of adventurous pirates. They would not likely fare better anywhere else.
Ref: United States v. Hasan, et al., 2010 WL 4281892 (E.D. Va. 2010)
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