How to Define Piracy Under U.S. Law and the “Law of Nations”

How to Define Piracy Under U.S. Law and the “Law of Nations”

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court.  Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”.

Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. “We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time,” says the public defender, Mr. Kamens.

I love that the defense lawyers are taking a page from Justice Scalia’s textualist approach to statutory interpretation. And it is a sort of compelling argument, although I’m not sure it is right.   Congress has criminalized “piracy as defined by the law of nations”.  It is certainly plausible that they intended to authorize federal courts to interpret the law of nations, as it evolved, when defining piracy.  But it is also plausible to me that Congress would have intended for the courts to apply only definitions of piracy at the time the statute was enacted, especially since this is a criminal statute.

In Sosa v. Alvarez-Machain, the Supreme Court considered the phrase “law of nations” in the quite different context of the Alien Tort Statute.  If we were to adopt that approach, the courts could only adopt definitions of piracy that are as well settled under the law of nations today as they were at the time the piracy statute was enacted.  I bet the lower and appellate courts that consider this question will follow the Sosa approach.  Which probably (although not necessarily) means the pirates here are out of luck.

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David Glazier

It makes sense that the defense is arguing the law given the difficulties that the facts pose for their side.  And I’m sympathetic that life in federal prison may seem a bit harsh for impoverished individuals from the most disfunctional state on earth who probably lack any legitimate means to earn a living wage. That said, I think there is a much stronger case for the validity of the modern law than is made out in the article. (1)  The law of nations was routinely applied in federal courts in the early days of the Republic, in deed well before the Constitution, primarily in the form of prize case decisions adjudicating captures both the the privateers alluded to in the article, but also by the U.S. Navy as well. So this was clearly something taken for granted in that era, and courts were quite commonly called upon to wrestle with interpretting it. (2)  It seems quite clear to me that the framers considered the “law of nations” to be malleable; indeed members of the framing generation, includingThomas  Jefferson, sought to alter the law’s treatment of goods carried by neutral shipping — they wanted to change the law to “free ships, free goods”… Read more »

Alan G. Kaufman
Alan G. Kaufman

In the view of this retired Navy JAG Corps officer who worked on these issues for U.S. Navy operational headquarters once upon a time — in the days when Professor Glazier was a Navy ship driver and Commanding Officer, my view is that he has this right.  See also, the famous case of the Paquete Habana (175 U.S. 677, 1900), a Supreme Court opinion coming from a prize case involving naval operations during the Spanish American war….”International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  …when there is no treaty, and no controlling executive or legistlative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of those, to the works of jurists and commentators…such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law actually is.” As to the relevance of UNCLOS, see also the Restatement of the Law, Third, Foreign Relations Law of… Read more »


[…] the approach is sensible, these principles are misapplied here, for reasons David Glazier mentioned in comments earlier, and others. The Law of the Sea treaty clearly includes attempts as part of piracy. Here […]