One Possible Defense Against Piracy: Self-Help

All news is local, I guess, even in this supposedly globalized age.  So it is not surprising that it took an attack on a U.S. ship with a U.S. crew to focus the American public’s attention on the piracy problem off the coast of Somalia.  But as readers of this blog can attest, the piracy issue has been flagged, addressed, and analyzed carefully.   Most recently, emerging piracy law expert Eugene Kontorovich has outlined the problem here. 

One possible remedy for the piracy problem is self-help.  That is to say, merchant ships should, like the U.S. flagged Maersk Alabama, fight back against the pirates without waiting for the Navy to show up.  This appears to have more or less worked in the Alabama’s case, even though the crew was probably unarmed.  The Navy is, frankly, not much help because, while they can shoot a missile out of a sky, they have a hard time tracking little speedboats.  And even worse, as Prof. Kontorovich has pointed out, the Navy may not be able to shoot at the pirates even when they do show up unless the pirates shoot first.  Nor are they willing to try them, or punish them, given various legal protections that the pirates now enjoy under international law and the U.S. constitutional defenses they can probably raise against a U.S. prosecution (gotta love that Boumediene case, just gotta love it).   

Self-help might actually be the most effective measure, although I’d have to think about what legal rules of engagement would apply to a merchant mariner shooting at a pirate.  Ironically, the merchant mariner (acting in self-defense) is probably legally better off than a naval officer in fighting pirates.  And self-help is cheaper than naval protection in most cases.  But it still might be more expensive than just paying the ransom, which has been the preferred option up until now.