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Piracy and International Law

April 19, 2009

Before heading over to the YouTube Conference keynote, I tuned in for a few hours Thursday morning to the Harvard University Humanitarian Law and Policy Forum‘s latest live webcast. (Recording can be accessed here.)Thursday morning’s discussion: the status of pirates and piracy in international law.

I didn’t catch the whole thing because I had to run to an 11:00 meeting, but key points of discussion included:

1) Practical concerns such as the implications of listing pirates as terror groups (because then no ransom can be paid), the risks of using lethal force, etc.

2) The human rights of pirates

3) Policy options (including rerouting shipping around the Cape of Good Hope) and countermeasures (including PSCs on merchant ships)

and of most interest to me:

4) The legal status of pirates (defined not in humanitarian law but in the UN Convention on the Law of the Sea) and

5) How to reconcile universal jurisdiction and national sovereignty

As a crime of universal jurisdiction, all countries may capture pirates (if they fit a rather limited definition) on the high seas and prosecute – but, this does not hold true in a country’s territorial waters because of sovereingty issues (the patchwork of domestic jurisdictions / national laws of littoral states complicates a coordinated response to the problem.

I’m not trained in law (maybe I need to be in order to understand developments in this area), but a question left in my mind after the discussion is this: Why are the UNCLOS provisions being so strictly adhered to in what clearly remains a failed state situation? Legal analysts and policymakers seem hell bent on upholding Somali “sovereignty.” But what sovereignty? Beginning with SCR’s authorization of UNOSOM in 1991, the UNSC set a precedent of ignoring the requirement of state consent for operations needed for international peace and security in cases (also Somalia at the time) in which no functioning state is present to give consent.

Of course, even if it were recognized that countries besides Somalia have a right (and responsibility) to deal with piracy within Somali territorial waters, that does not solve the wider problem of how to restructure maritime law to deal with piracy as a global problem. The four United Nations Security Council Resolutions to date deal only with the situation in the Gulf of Aden; but many of the issues raised in that area apply broadly, so a patchwork approach really won’t do.

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.