Tag Archive | "UNCLOS"

A Second Avenue to Assert Universal Jurisdiction Over Pirate Negotiators

In my previous post, I argued that the two pirate negotiators prosecuted by the United States – Mohammad Saaili Shibin and Ali Mohamed Ali – must have incited or intentionally facilitated piracy while on the high seas in order to have exposed themselves to prosecution by a court whose only basis for taking the case is universal jurisdiction.

There is another way for a pirate negotiator to subject himself to universal jurisdiction: an ex ante agreement to negotiate for pirates in the event of a successful hijacking.

An Arrest on the High Seas
(Maritime Security Review)

This avenue is not applicable in the Shibin or Ali cases, as there is no evidence suggesting such an agreement, but it is nonetheless worth exploring because this is the avenue through which the true kingpins can be brought to justice.

The source of this second avenue of universal jurisdiction is the plain meaning of the verbs “to incite” and “to facilitate” contained in UNCLOS art. 101(c).

In the English dictionaries of the 18th, 19th, and 21st centuries, to incite is “to stir up,” “to animate,” and “to move to action.” To facilitate is to “to make easy,” “to free from difficulty,” or “to help bring about.”

Both of these verbs have prospective implications. An inciter or facilitator must either induce violence, detention or deprivation on the high seas or make such violence, detention, or deprivation on the high seas easier than that it would have been without the inciter or facilitator.

It strains both logic and credulity to suggest that an individual who had no involvement in – or even knowledge of – a hijacking on the high seas somehow spurred on or made easier that particular hijacking.

So in the end, we are left with two potential avenues for a pirate negotiator to subject himself to universal jurisdiction. The first is to commit an act of inciting or facilitating while physically present on the high seas, and the second is to enter into an ex ante agreement with the pirates.

The second avenue brings the real kingpins – financiers and investors, not negotiators – within the scope of universal jurisdiction. As for negotiators who neither enter into an ex ante agreements nor set foot on the high seas, they should still be judiciously targeted for prosecution, but something more than universal jurisdiction is required.

Flag states of the victim ship, national states of the crewmembers, as well as Somalia itself must step in and fulfill their international obligation to prosecute.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on TwitterCross-posted on Communis Hostis Omnium.

 

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A High Seas Requirement for Pirate Facilitators Under UNCLOS?

Somali Pirates
(al-Jazeera)

The economic conditions in Somalia are such that there is no shortage of men willing to hijack a ship, risking their lives in hopes of earning of the equivalent of 20 years of income – $5,000 in Somalia – out of a single $1.5 million ransom. That basic reality is the driving force of modern maritime piracy, and it leads to a similarly basic conclusion.

Aside from fixing the economic situation in Somalia, prosecution of those higher up in the criminal chain of conspiracy – the investors and financiers of piratical operations – is the most effective, non-violent means of to putting an end to maritime piracy. If labor is cheap and capital is scarce, it makes sense to go after the capital.

The United States government has done its part by prosecuting two pirate negotiators,1 Mohammad Saaili Shibin and Ali Mohamed Ali. The current dispositions of these cases highlight an interesting and important legal issue stemming from a common characteristic of piracy higher-ups. They themselves never set foot on the high seas.2

Mohammad Saaili Shibin
(AP Image)

In Shibin’s case, Judge Robert Doumar allowed his trial to proceed; Shibin was found guilty and sentenced to 12 terms of life. In the Ali case however, which is still in progress, Judge Ellen Huevelle has found3 that the perpetrator must be on the high seas for a crime of universal jurisdiction to occur.

What accounts for this discrepancy in United States courts? Who has the better of the argument? The answers to these questions have profound implications for the future of prosecuting those who profit most from piracy.

At the heart of this disagreement is a dispute over the proper interpretation of the UNCLOS definition of piracy and the United States’s federal statute criminalizing piracy under the law of nations. Both of these texts must be read according to one of the most basic canons of statutory interpretation — that statutory language not be read as being duplicative or ineffectual.

Opponents of a high seas requirement, such as Douglas Guilfoyle at University College London, argue  that UNCLOS art. 101’s definition of piracy makes it clear that performing piratical acts carries a high seas requirement, but acts of inciting or intentionally facilitating piracy can be performed anywhere, implying that both are crimes of universal jurisdiction.

To support this argument, opponents cite art. 101(a)(i) of UNCLOS, which states that piracy “consists of…any act of violence or detention [or deprivation]… committed for private ends by the crew… of a private ship…and directed…on the high seas, against another ship” [emphasis added]. They contrast that section with the next part of the piracy definition, art. 101(c), which says “any act of inciting or of intentionally facilitating an act described in subparagraph (a)” constitutes piracy. Opponents of a high seas requirement for facilitators conclude that, because UNCLOS announces a high seas requirement in subparagraph (a) and not in subparagraph (c), no such requirement exists for facilitation.

Conversely, proponents of a high seas requirement, including Northwestern University’s Eugene Kontorovich, cite various provisions of UNCLOS suggesting that universal jurisdiction over maritime piracy exists only where the act takes place on the high seas.

Chief among these provisions are arts. 100 and 105. The former limits a state’s duty to cooperate in the repression of piracy, and the latter restricts states’ universal capturing and adjudicating authority over pirates to acts occurring on the high seas. Additionally, art. 86 explicitly states that Part VII of UNCLOS (the part including the definition of piracy) only applies to the high seas and other areas outside the jurisdiction of any state.

Opponents counter that even if all of the aforementioned high seas references are operable, the drafters’ inclusion of a high seas requirement in 101(a) is otiose if 101(a) and (c) already had an implicit high seas requirement. Any other reading, they argue, is contrary to one of the most fundamental canons of statutory interpretation.

This is a mistake stemming from a conflation of UNCLOS’s definition of piracy and its pronouncements on universal jurisdiction. Opponents may be correct in suggesting that there is no high seas requirement for facilitators to commit statutory piracy as defined by UNCLOS, but they are wrong in arguing that performing an act described in art. 101 leads directly to universal jurisdiction.

Where piracy is concerned, UNCLOS performs at least two discrete functions: defining piracy and delineating the metes and bounds of universal jurisdiction over piracy. Art. 101 defines piracy as, inter alia, any act of violence, detention or deprivation on the high seas or any act of inciting or intentionally facilitating such an act. Where the statutory definition is concerned, there is a high seas requirement for perpetrators but none for inciters or facilitators.

Art. 101 says nothing about universal jurisdiction, however, and the parts of UNCLOS that do discuss universal jurisdiction – arts. 100, 105, and 86 – make it unmistakably plain that such jurisdiction extends only to acts physically performed on the high seas.

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Section 1651 splices the definition of piracy and its high seas requirement as precondition for universal jurisdiction, outsourcing the former to international law (“as defined by the law of nations”) while making the latter explicit in the treaty (“[w]hoever, on the high seas”) , which is entirely consistent with the plain language of UNCLOS and the canon of construction at issue.

This means that, as defined by UNCLOS, negotiators and financiers who never set foot on the high seas have committed piracy, but that they have not committed a crime of universal jurisdiction. Unless higher-ups enter the high seas, they can be prosecuted only under the territorial, national, passive personality, and protective bases for jurisdiction.

At first blush, it may appear that such an interpretation does not bode well for those seeking to put an end to the global menace of maritime piracy, especially in light of the widely-held belief that the surest non-violent way to deter the piracy, apart from economic reconstruction in Somalia, is through the aggressive prosecution of so-called pirate “kingpins.”

In the coming weeks, however, I hope to dispel the notion that a high seas requirement for facilitators is bad for the international community. Such a requirement is in line with the policy rationale behind universal jurisdiction and it may ultimately be useful in prosecuting and punishing pirate financiers who never leave dry land.

Jon Bellish, the founding Editor in Chief of The View From Above, is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter.  This piece is cross-posted on Communis Hostis Omnium.

  1. To be clear; negotiators are not financiers. Financiers perform much less physical labor and reap much more of the profits than negotiators. Though it is financiers that should be the ultimate targets, negotiators are in a similar legal position and are therefore highly relevant. Both groups facilitate, rather than perpetrate acts of piracy, and neither tends to enter the high seas.
  2. This fact was stipulated in Shibin’s case but is still at issue in Ali’s. Although the government claims Ali spent only 24-28 minutes outside Somali territorial waters, it has admitted that there is no evidence that Ali actively facilitated piracy during that time period.
  3. Take a look at Judge Huvelle’s opinion, which is a fine example of the U.S. Federal Bench’s appreciation and understanding of international law.

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Direct application of the international law of piracy in municipal systems

Cross-posted at piracy-law.com

Most legal authorities assume that signing and ratifying the UN Convention on the Law of the Sea is insufficient, in and of itself, to provide a state a jurisdictional basis to prosecute acts of piracy on the high seas.  For example, Jose Luis Jesus, the former President of the International Tribunal for the Law of the Sea has explained:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

Similarly, the most recent UNSG report of 19 January 2012 on the problem of piracy in the Gulf of Guinea states that UNCLOS provides for universal jurisdiction to prosecute pirates, but since Benin’s Maritime Code does not incorporate these provisions, Benin’s jurisdiction on piracy acts committed on the high seas is limited to acts committed by its citizens or on board of Benin’s ships.  The same concern has been expressed regarding the failure of the Transitional Federal Government to pass legislation criminalizing piracy in Somalia. Finally, based on UNCLOS Article 100 which requires that states must “cooperate to the fullest possible extent in the repression of piracy”, Douglas Guilfoyle has stated that “the inference is that States have no duty to enact relevant national offences [for piracy] and have ‘a certain latitude’ to cooperate in suppressing piracy by means other than prosecution.”

Credit: EUNAVFOR

This view is understandable when observed through the lens of treaty law whereby implementing legislation is a necessary prerequisite to application within a municipal system. But the international law of piracy has also been accepted as customary law. For example, the 2010 Digest of US Practice in International Law, though noting the U.S. has not signed or ratified UNCLOS, states, “the actions and statements of the Executive Branch over more than six decades reflect the consistent U.S. view that this definition [of piracy in Article 101 of UNCLOS] is both reflective of customary international law and universally accepted by states.” Furthermore, each of the UN Security Council resolutions on piracy in Somalia and the Gulf of Guinea have emphasized that the only definition for the crime of piracy in international law is the one set forth in UNCLOS to which 162 states are states parties. UNCLOS has codified the customary international law of piracy.

Considering the law of piracy is settled both in treaty as well as customary law, is it possible that it is directly applicable in municipal systems without the need for implementing legislation? Some states accept that international law, especially with regard to jus cogens or very serious crimes (such as crimes against humanity and war crimes), applies directly within that state without the need to pass such legislation. With regard to piracy, whether or not it may apply directly would appear to hinge on a number of factors, including the gravity of the offence, whether there is a duty to prosecute in international law, whether the applicable treaties are self-executing, and the nature of a municipal system as monist or dualist. (Ward N. Ferdinandusse’s study is particularly helpful on this point.) Direct application of international law is not without precedent in African states, but will obviously need to be addressed on a case by case basis. To cite but one intriguing example, the 2010 Kenyan Constitution provides in Article 2 that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

The somewhat academic question of the indirect or direct application of international legal norms may not have been addressed by many African states confronted with piracy. Therefore, in the absence of clarity on this issue, the least risky practice would be to assume there is no direct application and insist on the codification of the legal definition of piracy in municipal law prior to instituting any prosecution. Indeed this seems to be the strategy adopted by the UN Security Council Resolutions on the issue. Is it, nonetheless, possible that the international law of piracy is directly applicable in certain African states, thereby rendering criminalization in positive law superfluous? The answer could have important ramifications for prosecutions in states without anti-piracy legislation or in those with incomplete legislative frameworks.

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University of Denver Sturm College of Law

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