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

by Julian Ku

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.

3 Responses

  1. 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” meaning that anything carried by a neutral (U.S.) ship would be exempt from capture even if it was property owned by a belligerent.  This would have been a wholly wasted effort after 1789 if the Constitution locked federal courts in to applying the “law of nations” as it stood at the framing.  And the one prize case American lawyers seem most familiar with, The Paquete Habana, is all about judges weighing the evolution of law of nations rules about captures with nary a word about what was the state of the law in 1789.

    (3)  The “modern” definition of piracy is hardly some mere “UN” resolution.  It was codified, based largely on existing customary international law, in the reasonably widely ratified 1958 Convention on the High Seas.  (And there were a LOT fewer nations in 1958 than there are today!)  The U.S. is a party to this agreement, so as a matter of U.S. law the “last in time” rule could be fairly interpretted to make the fedearl statute subject to this treaty rule.

    (4)  The same definition was also incorporated into the much more widely ratified 1982 UN Convention on the Law of the Sea.  Somalia is a party to UNCLOS.  Although the U.S. is not, the U.S. government has long asserted that most provisions of the treaty are declarative of CIL; indeed the Navy in particular absolutely relies on its provisions on a daily basis — indeed it is safe to say that the Navy vessels involved in these piracy incidents could not have gotten to the Gulf of Aden/North Arabian Sea without relying on the transit passage provisions crafted out of whole cloth by the treaty negotiators in order to facilitate agreement to the concurrent expansion of the authorized territorial sea to 12 nautical miles. 

    In sum, I believe the most reasonable interpretation is that the current international law definition of piracy is that found in the 1958/1982 conventions and that it reflects the rule that U.S. courts should apply to contemporary piracy cases.

  2. 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 the United States, on customary international law generally, and in partlicular, section 102:  “International Agreements constitute the practice of states and as such contribute to the growth of customary law…Some multilateral agreements may become law for non-parties who do not actively dissent.  That may  be the effect where a multilateral agreement is designed for adherence by states generally, is widely accepted, and is not rejected by a significant number of important states…”

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  1. […] 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 […]