Ruth Wedgwood on Piracy – ‘The Law Adrift’ and Ken’s Contentious Remarks on the Larger Issues of Order

(Update: At the end of this post, I put a note from Eugene Kontorovich on his new paper on piracy, apparently still a discussion draft and not yet on SSRN, but apparently available from him if you contact him at Northwestern.) 

In the midst of so much newspaper op-ed, blogosphere commentary on the piracy issue, Ruth Wedgwood – who has been working on this issue for some time now – has a fine piece up at The American Interest on the larger issues of piracy and international law, The Law Adrift.  (Ruth presented an early version of this at one of the Hoover Task Force on National Security and Law sessions last year.)  If one is looking for deeper examinations of contemporary piracy in law and policy, where do you go?  Ruth Wedgwood’s writing is one place.  Another is the scholarship of Eugene Kontorovich, who began working on this issue as a scholarly question several years ago – Opinio Juris has posted an important guest comment from Eugene on piracy and why current policies are not working by him; it is well worth reading in the current discussion.  And there is Peter T. Leeson’s brand new book from Princeton UP – The Hidden Hook: The Hidden Economics of Pirates. 

I raise these to note, especially for web researchers who might have drifted here to OJ looking for sources, there are discussions of these issues that go deeper than the op eds and blog posts.  I also continue below with a contentious and possibly rude comment on the relationship of this to international law more broadly.  But one of Ruth Wedgwood’s important observations is the way in which the edifice of international law precludes common sense realism:

[T]he UN Security Council voted in November 2008 that foreign navies could target pirates within Somalia’s territorial seas—that is, within 12 miles of shore—so long as they had a letter of consent from the Transitional Federal Government of Somalia. In December 2008, the Security Council voted that foreign states could take enforcement action ashore and in Somali airspace to root out pirate lairs, so long as the Transitional Federal Government again consented. Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense.

This should arrest the attention of any legal historian. In the origins of international law, piracy was considered the gravest act against the good order of the state system. Any sovereign state could prosecute a pirate for robberies at sea, even if the ship, crew, cargo, pirate and location had no connection to the avenging state. American law reflected this understanding. Pirates are enemies of all mankind, hostis humanis generis, explained Supreme Court Justice Joseph Story in his 19th-century opinions. The first Congress passed a long-arm statute in 1790 allowing federal prosecution of any piracy committed on the “high seas.” This authority was frequently exercised, and it is still good law.

But in the Gulf of Aden, there are complications, as lawyers are wont to say. Federal piracy law is limited to acts on the “high seas.” That zone begins 12 miles from shore. Closer to the Somali coast, the waters are “territorial seas” and ordinarily are policed by a coastal sovereign—but not here. While the United States can capture these coastal pirates under the Security Council’s decision, the high-seas federal statute has not been adapted to their prosecution.¹ An amendment to the Federal piracy statute could also clarify that the modern nautical category of an “exclusive economic zone”, which extends 200 miles from shore, does not change the older definition of high seas for the purpose of criminal jurisdiction.

Other states have difficulties of sensibility as much as law. On December 25, 2008, Somali pirates swarmed the Wadi al-Arab, an Egyptian cargo vessel, and gunned down a sailor. A German naval helicopter from the frigateKarlsruhe came to the rescue, interrupting the attack and treating the wounded sailor. But in a televised “reality show” stunner, the pirates were then released and sent back to shore. EU task force commander Achim Winkler told a BBC reporter that Germany would detain pirates only when a German ship was itself attacked or German citizens were killed or injured. The BBC program was called, with no apparent irony, Europe Today.

Now, such a policy of “catch and release” may make sense for recreational fishing, but pirates are not fish. What’s going on here? The answer is that we are back to a gnawing issue familiar to the post-September 11 world: Can states exercise the right of capture outside the limits of their own national territories, and if so, how is the prisoner to be held?

This, of course, is the issue that the US confronts with its newly captured pirate.  And one of the remarkable features of that argument is how quickly we are back to the pre-9/11 paradigm:  despite a vast body of international law particular to piracy and its problems of enforcement and justice on the high seas, despite the availability of self-defense paradigms in the case of hostage taking and terrorism, we are back to human rights paradigms pressing the assumption that all this must be a matter of law enforcement, arrest, evidence collection, trial, etc.  One of the problems for United States is always the temptation to go down the path of least resistance in the immediate case, without paying attention to the damage done to common sense and the common good down the road.  Thus, in this case, making out the law enforcement case is easy, and so a rational administration – Obama, Bush, anyone – says, okay, why make this harder than it is?  But then you have set a precedent that won’t necessarily work so well in the more typical situation in which evidence of a kind available in ordinary US-territory crimes and availing in US courts is not available.   

UPDATE:  As Eugene Kontorovich sends in an email (contact him at Northwestern for the discussion drafts):

Given that keen current interest in the piracy problem, I thought you might be interested in forthcoming scholarly essay dealing with the legal obstacles to stopping pirates, entitled “A Guantanamo on the Sea”: The Difficulties of Prosecuting Pirates and Terrorists. The essay is forthcoming in the California Law Review; I wrote it several months ago, before the piracy problem attracted major attention, but due to the ridiculously slow production schedules of law reviews, it won’t be published until next year, so I thought it would be appropriate to share it informally now.

Given the robust reaction to the seizure of an American vessel, most people would be surprised to learn that the response of the United States and other nations patrolling the Gulf of Aden to pirate attacks over the past year has been to either avoid arresting the pirates in the first place, or to put them back in the water once caught. Everyone agrees that the legal obstacles to prosecuting would be so daunting, it would be better to not risk it. The title is a quote from the German Foreign Minister, who explained the catch-and-release policy by saying no one wanted a Guantanamo on the Sea.

The essay explaining the legal and practical difficulties to taking both military and criminal approaches to the piracy problem. Because pirates are not combatants but rather civilians – yet civilians operating in a highly organized armed manner outside the control of any country – international law and the criminal procedure rights of Western countries make any solution challenging.  

The Article’s principle contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms. Also attached is a piece in the forthcoming American Journal of international law about the first universal jurisdiction piracy case decided by America in hundreds of years, decided by the Ninth Circuit last year. The little noticed case also demonstrates the difficulties involved — the entire crew had to be detained on material witness warrants, translators found for everybody, etc.

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Very much more broadly, let me go way beyond any of these discussions.  Ruth Wedgwood does not say so in her article, but let me add entirely for my own part, and I’m afraid this will be contentious – what is correctly described as a stunning lack of common sense says something broader about this edifice of public international law. Viz., that if it is a system of law, then it is a system of law whose systemic outcome turns out to be transnational political disorder.  

I have suggested elsewhere that the ideology of transnational law is important for the Obama administration (following on Eric Posner’s remarks) primarily as a mechanism for moving US law internal to the United States.  An end-run using international law as a means around democratic legitimacy within the United States itself – it’s a well known critique, obviously, made by everyone from me to John Bolton to Jeremy Rabkin, but not, in my view, any less true on account of that.  But up until the piracy incident, I largely agreed with Eric’s assessment that transnational law in the Obama administration is about moving American law internally to the left.  I have argued that the Obama administration has been in a debate, in these early days, between transnational law paradigms, on the one hand, and the ‘new liberal realism’, on the other.  

Up until now, I inclined to think that the administration would resolve these through a procedural device that postponed making any serious structural policy choice as between the two – ‘engagement’ for its own sake – and finally tending to a division of labor.  Transnationalism would have its primary impact as a legal theory to be opposed ideologically to traditional democratic American sovereignty, an impact primarily internal to the US; the real and dangerous relations of the United States with the rest of the world would be undertaken through the ‘new liberal realism’, which is to say, regular old realism with an extra dollop of transnationalist surface rhetoric on top.  I am now not so sure. Transnationalism might turn out to play a much larger role on the wider stage of foreign policy than I thought before this latest piracy incident.  How would one know?  Well, perhaps by more evidences of the ‘stunning lack of common sense’ that Ruth Wedgwood’s article refers to, and a lot of that evidenced in how the US decides to deal with its captured pirate and whether it decides to treat piracy on the high seas merely according to the criminal law model and whether it decides to take action, in accordance with both the ‘new liberal realism’ and the Security Council resolution, on land in Somalia.  

But there is a larger lesson, in my view, anyway (and I understand this might annoy some gentle-readers).  The presumed (although in large part imaginary, self-indulgently imaginary) cosmopolitanization of the world at the level of comfortable bourgeois transglobal elites paves the way for, first, the by-passing of the ordering sovereign nation-state and then, second, the re-primivitization, as Mark Steyn put it, of vast swathes of the planet.  (I adore our very own Peter S and think you all should buy and read his exceptional book; I do not however share Peter’s vision of the post-citizen world.)  Promote a system of international law for the planet notable for its heroic standards of other-worldly justice, and discover that what we have done is not quite what we thought.  

We thought, first, that we had created a system of universal law.  Instead what we created turns out to be merely a system of hold-up vetoes by a long list of actors who benefit from having a say but have little at risk in the outcome. Which is to say, we do not so much create law as (mis-) allocate power – allocating power, but in a profoundly dis-ordering way, by dispersing it, so as to make it unavailing in virtue of our self-imposed legal categories even against relatively tiny threats.  

And, second, the disorder so thoughtlessly created by global elites results from having privatized gains in the form of organizations, advocacy groups, norm entrepreneurs, governments looking to hold up other governments, international organizations and their internal congeries of self-interest, the ‘invisible’, but also the ‘visible’, and increasingly noisy, college of international law, etc. – but socialized losses, as in the inability to respond to such things as pirates.  Why is it that public international law study is so little studied through the lens of public choice theory? 

And where is it I’ve been hearing about ‘privatized gains and socialized losses’?  Is it possible that what we call ‘universal, transnational international law’ looks remarkably in this matter like an exercise in moral hazard by global governance elites in the planetary centers of governance that also happen, often enough, to be the planetary centers of global finance? Those global financial elites not so long ago undertook their own exercise in moral hazard – privatized gains and socialized losses.  For someone like me, whose day job is actually corporate finance professor, the two have certain similarities.  Profound differences, sure, but also certain similarities. How does Steyn put it?:

In a world of legalisms, resistance is futile. The Royal Navy sailors kidnapped by Iran two years ago and humiliated by the mullahs on TV were operating under rules of engagement that call for “de-escalation” in the event of a confrontation. Which is to say, their rules of engagement are rules of non-engagement. Likewise, merchant vessels equipped with cannon in the 18th century now sail unarmed. They contract with expensive private security firms, but those security teams do not carry guns: When the MV Biscaglia was seized by pirates in the Gulf of Aden last year, the Indian and Bangladeshi crew were taken hostage but the three unarmed guards from “Anti-Piracy Maritime Security Solutions” in London “escaped by jumping into the water.” Some solution. When you make a lucrative activity low-risk, you get more of it…

Somalia, Iran, and North Korea are all less “civilized” than they were a couple of generations ago. And yet in one sense they have made undeniable progress: They have globalized their pathologies. Somali pirates seize vessels the size of aircraft carriers flying the ensigns of the great powers. Iranian proxies run Gaza and much of Lebanon. North Korea’s impoverished prison state provides nuclear technology to Damascus and Tehran. Unlovely as it is, Pyongyang nevertheless has friends on the Security Council. Powerful states protect one-man psycho states. One-man psycho states provide delivery systems to apocalyptic ideological states. Apocalyptic ideological states fund non-state actors around the world. And in Somalia and elsewhere non-state actors are constrained only by their ever increasing capabilities.

When all the world’s a “distraction,” maybe you’re not the main event after all. Most wealthy nations lack the means to defend themselves. Those few that do, lack the will. Meanwhile, basket-case jurisdictions send out ever-bolder freelance marauders to prey on the civilized world with impunity. Don’t be surprised if “the civilized world” shrivels and retreats in the face of state-of-the-art reprimitivization. From piracy to nukes to the limp response of the hyperpower, this is not a “distraction” but a portent of the future.