Structuring A Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat The Somali Pirates, by Lieutenant Todd Hutchins

Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates
Todd Emerson Hutchins*

Piracy is a complex problem that threatens maritime safety and interferes with global commerce. Supported by networks of financiers and negotiators, Somali pirates viciously attack seafarers across expansive stretches of the Indian Ocean. Despite costly naval interventions, pirates continue to strike. Powerful nations from around the globe have been unsuccessful at stemming the problem because they have focused on capturing and prosecuting a relatively small number of seagoing pirates, while allowing pirate networks to operate with near impunity. To prevent future attacks, an effective and sustainable deterrence regime must be implemented to target the financiers and sophisticated kingpins who lead pirate networks. This Comment examines a new approach based on an age-old solutionprivateers. The U.S. Constitution expressly provides that Congress, by issuing letters of marque, can enable private entities to conduct maritime warfare on behalf of the nation. Successive generations of American governments have employed letters of marque to combat maritime threats efficiently. Once more, the
Copyright 2011 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Lieutenant Todd Hutchins is a naval Surface Warfare Officer and is currently a Judge Advocate student at the Naval Justice School in Newport, R.I.; B.A. University of Southern California; Masters of Planning, USC School of Policy Planning and Development; J.D. University of California, Berkeley School of Law. This Comment benefited from workshops, presentations, and lectures hosted by the American Society of International Law, the California Law of the Sea Institute, the International Tribunal for the Law of the Sea, and the Rhodes Academy for Ocean Law and Policy. Special thanks to Professors John Yoo, Harry Scheiber, and David Caron for their insight and guidance, as well as Tim Salomon of Bucerius Law School for outstanding critique which strengthened the paper. Genuine appreciation to Mark Evan at the Naval History & Heritage Command, the American Aviation Historical Society, and the University of Akron Historical Archives for excellent research support. The views expressed in this article are those of the author and do not reflect the official policy or position of the U.S. Navy, the Department of Defense, or the U.S. Government.
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commissioning of privateers might prove to be an appropriate tool in the battle to dismantle pirate networks. Given the dispersed nature of the problem and relatively limited capabilities of the pirates, this Comment argues that privateers may provide a more cost-effective and sustainable approach than deploying naval forces. It suggests how a new regime for deploying privateers against Somali pirates could and should be established consistent with international law under either international or domestic frameworks. Introduction .................................................................................................... 820 I. Background ................................................................................................. 822 A. International Naval Response ......................................................... 827 B. Prosecution and Deterrence ............................................................ 830 C. Alternative Approaches to Counter-Piracy ..................................... 831 D. Legal Context for Addressing Somali Piracy ................................. 838 II. Letters of Marque ....................................................................................... 843 A. Historical Development of Letters of Marque and Reprisal ........... 844 B. Early American Understanding of Letters of Marque .................... 846 C. Letters of Marque Under the Articles of Confederation ................. 847 D. Letters of Marque and the Constitutions Framework .................... 850 E. Development of Letters of Marque in the American Legal System.......................................................................................... 853 F. The Paris Declaration ...................................................................... 854 G. Post-Paris Declaration Use of Letters of Marque ........................... 856 III. The Present State of Letters of Marque in International Law and American Jurisprudence ...................................................................... 862 IV. Structuring a New Letters of Marque Regime .......................................... 867 A. Procedural Safeguards via Prize Court Adjudication and Oversight...................................................................................... 872 V. New Letters of Marque Regimes as Applied to the Horn of Africa Situation: Incentivizing Privateers and Dismantling Pirate Networks ............................................................................................. 879 A. Land-Based Seizure ........................................................................ 881 B. Global Seizure of Kingpin Assets ................................................... 881 C. Establishing a Framework for Letters of Marque and Privateers ... 883 Conclusion ...................................................................................................... 883 INTRODUCTION With few economic opportunities onshore, many Somalis have taken to the seas off the Horn of Africa as pirates. Last year, these pirates attacked hundreds of vessels, demanding ever-increasing ransoms for both ships and crews. More than a mere nuisance, these marauders threaten seafarers, disrupt global commerce, and frustrate the freedom of navigation. Military interventions by superpowers, including the United States, the European Union,
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and China, have been unable to stop the piracy. Their failure lies in a strategy focused on deterrence and prosecution, rather than on the destruction of pirate capabilities. Even though international efforts have led to the capture of a few dozen impoverished pirates since 2008, the global military behemoths have achieved little on a systematic level. Alarmingly, a high number of attacks continue, even in patrolled areas. Moreover, piracy has proliferated, spreading across wider stretches of ocean. Pirates now utilize advanced tactics and sophisticated tools to demand exorbitant ransoms. Maritime powers need a new strategy to sustain an adequate antipiracy deterrent until a stable Somali government can maintain law and order. Increasingly, governments are exploring the possibility of directly utilizing private security forces to deal with the pirates. However, uncertainty over the legal status of such forces as well as how they would be controlled and compensated has, at least for now, precluded their employment. Most contemporary legal scholarship on piracy narrowly focuses on jurisdictional questions, like where and how to prosecute seagoing pirates, while neglecting the more fundamental question of whether prosecutions will actually prevent further attacks.1 The implicit assumption in these arguments is that prosecuting seagoing pirates will deter other would-be-pirates. Yet experience and logic provide reason to doubt this assumption. Although a small number of pirates are prosecuted, the threat of prosecution may not deter other desperate young Somalis eager for the possibility of acquiring relatively substantial wealth. Even if caught, pirates may prefer imprisonment under international standards to the harshness of life in Somalia. Furthermore, the prosecution of seagoing pirates does little to deter warlords, coordinators, and financiers running criminal networks. To these kingpins, the seagoing pirates are easily replaced, dispensable minions. To successfully reduce and deter piracy, nations must make piracy unprofitable for the kingpins. Recently, scholars have considered the possibility of issuing letters of marque to private actors as an antipiracy strategy.2 Theodore Richard suggests that the U.S. Congress, littoral governments near the Horn of Africa, and the feeble Somali government should issue letters of marque to private security forces aboard merchant vessels as a means of licensing and controlling them.3 Similarly, Alexandra Schwartz forcefully argues that reissuing letters of marque is a viable legal option that would enable the United States to employ
1. For a full discussion of the jurisdictional challenges and approaches to prosecuting seagoing pirates, see Eugene Kontorovich, A Guantnamo on the Sea: The Difficulty of Prosecuting Pirates and Terrorists, 98 CALIF. L. REV. 243, 25166 (2010). 2. See Theodore T. Richard, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy, 39 PUB. CONT. L.J. 411 (2010); Alexandra Schwartz, Corsairs in the Crosshairs: A Strategic Plan to Eliminate Modern Day Piracy, 5 N.Y.U. J.L. & LIBERTY 500 (2010). 3. Richard, supra note 2, at 464.
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privateers in a broader array of activities.4 These scholars have laid the groundwork for a contemporary understanding of letters of marque. This Comment further develops the concept by considering how such a legal framework could be structured under both domestic and international regimes, and how it might effectively deter pirates while adequately compensating and controlling privateers. However, unlike prior scholars, I propose establishment of an international system of issuing letters of marque. This approach would build on the current multilateral antipiracy efforts underway in the Indian Ocean, avoid questions of legitimacy or international wrangling over the illegality of privateer actions, and enable individual nations to avoid becoming entangled in fighting and prosecuting pirates. First, this Comment considers why current antipiracy approaches are ineffective and unsustainable. Second, it surveys privateers role in American and international legal contexts, specifically studying the Framers intention in incorporating letters of marque into the Constitution and the implications of the 1856 Paris Declaration Respecting Maritime Law (Paris Declaration) on the use of privateers against pirates. Third, it promotes letters of marque as a viable legal mechanism to counter modern piracy under international and domestic law. This Section also explains how a new letters of marque regime could address predictable concerns about the commercialization of warfare, procedural safeguards, due process, humane treatment, oversight, and efficient prosecutions. The paper concludes by proposing a new internationally-coordinated system of issuing letters of marque and explaining how this system might incentivize private action in the Horn of Africa context to sustainably address Somali piracy until a competent government can be established on land. I. BACKGROUND In 2008, Somali pirates attacked 111 merchant vessels, taking 815 crew members hostage.5 In 2009, the number of vessels attacked nearly doubled, reaching 217.6 In 2010 the number of attacks off the Horn of Africa remained high: Somali pirates attacked 206 vessels, hijacked 44 of those ships, and took
See Schwartz, supra note 2. Pirate Attacks Off Somalia Already Surpass 2008 Figures, INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVICES (May 12, 2009), http://www.icc-ccs.org/index.php? option=com_content&view=article&id=352:pirate-attacks-off-somalia-already-surpass-2008figures&catid=60:news&Itemid=51. A vessel is deemed attacked if pirates approach it and attempt to board. Once at least one pirate comes aboard, it is considered boarded. If the pirates take control of the ship, holding it or its crew hostage, it is considered hijacked. 6. In the course of these attacks, the pirates hijacked forty-seven ships and took 867 crew members hostage. 2009 Worldwide Piracy Figures Surpass 400, INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVICES (Jan. 14, 2010), http://www.icc-ccs.org/news/385-2009worldwide-piracy-figures-surpass-400.
4. 5.
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929 crewmembers hostage.7 In late 2010, pirates intensified their activities, employing more sophisticated weaponry and advanced techniques over a broader area of the Indian Ocean than before. Naval officials from the antipiracy task force called these advancements game-changer[s] and warned that new approaches would be necessary to stop the spread of piracy.8 Still, the number of ships attacked represents less than 0.2 percent of the 21,000 ships transiting the Gulf of Aden, and the direct financial costs to shippers of such attacks are miniscule relative to the industrys total revenues.9 Yet, the indirect and cumulative effects warrant attention. Economic impacts, security, regional stability, catastrophic risks, and potential for expansion are causes for concern. When the military response, private guards, and insurance premiums are taken into account, the cost of piracy in the Indian Ocean may exceed nine billion dollars annually.10 Moreover, if the Somali pirates remain unchecked, they will cause serious harm to the global economy. The Gulf of Aden is the main shipping route between the Middle East, Asia, and Europe. Twelve percent of the worlds oil output transits through the Gulf annually, and regional nations depend on the free flow of goods to support their populations
7. Piracy News & Figures, INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVICES, http://www.icc-ccs.org/home/piracy-reporting-centre/piracynewsafigures (last visited Dec. 16, 2010). 8. Lolita C. Baldor, Admiral Calls for Broader Approach to Piracy, NAVY TIMES, Jan. 26, 2011, available at http://www.navytimes.com/news/2011/01/ap-admiral-piracy-012611 (quoting Vice Adm. Mark Fox, the U.S. Naval Commander for U.S. Central Command, saying efforts should be made to follow the money trail and track where pirates get their fuel, supplies, ladders and outboard motors inside or outside of Somalia. This came in response to a jump in the number of hostages taken by pirates from 350 in September 2010 to 750 in January 2010). 9. Compared to the $183 billion annual output of the global shipping industry, the costs of piracy total about $30150 million. IHS GLOBAL INSIGHT, VALUATION OF THE LINER SHIPPING INDUSTRY: ECONOMIC CONTRIBUTION AND LINER INDUSTRY OPERATIONS (2009), available at http://www.worldshipping.org/pdf/Liner_Industry_Valuation_Study.pdf (noting the cargo liner industry produces over $183 billion of direct output globally); PETER CHALK, RAND CORP., MARITIME PIRACY: REASONS, DANGERS AND SOLUTIONS (2009) (publishing testimony before the House Transportation and Infrastructure Committee, Subcommittee on Coast Guard and Maritime Transportation); U.S. NATL SEC. COUNCIL, COUNTERING PIRACY OFF THE HORN OF AFRICA: PARTNERSHIP & ACTION PLAN 6 (2008) [hereinafter NSC, COUNTERING PIRACY] (estimating $30 million in annual piracy costs); Peter Chalk & Laurence Smallman, Piracy Still Threatens the Freedom of the Seas, RAND CORP., http://www.rand.org/commentary/2009/04/03/RFERL_ piracy.html (last visited Apr. 2, 2011) (estimating $50 million in costs); Q&A: Somali Piracy, BBC NEWS (Nov. 2, 2009, 09:30 GMT) http://news.bbc.co.uk/2/hi/africa/7734985.stm (noting the Kenyan Foreign Ministry estimates Somali pirates received $150 million in ransom payments in 2008). 10. Chalk, supra note 9; Tala Dowlatshahi, UN Wants Somali Pirates Stopped, TALK RADIO NEWS SERV. (Jan. 25, 2011 3:33 P.M.), http://www.talkradionews.com/news/2011/1/ 25/un-wants-somali-pirates-stopped.html (quoting United Nations Special Adviser Jack Lang). Insurance can reach $400 million per year. U.S. DEPT OF TRANSP., ECONOMIC IMPACT OF PIRACY IN THE GULF OF ADEN ON GLOBAL TRADE, http://www.marad.dot.gov/ documents/HOA_Economic%20Impact%20of%20Piracy.pdf; James Kraska & Brian Wilson, Fighting Pirates: The Pen and the Sword, 25 WORLD POLY J., Winter, 2008/09, at 43.
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and economies.11 Disrupting trade could result in serious economic and political ramifications. The shipping and insurance industries, which have the most at stake in reducing pirate attacks, appear unwilling or unable to take action necessary to prevent attacks. Early on, the shippers, the International Maritime Organization, and the international Contact Group on Piracy off the Coast of Somali (CGPCS) recommended practices like installing training crews, increasing speed, installing water canons, and posting lookouts to make ships more resistant to pirate attacks.12 Many shippers attempted to adopt these Best Management Practices (BMPs), and by 2010, the CGPCS estimated that 90 percent of vessels followed the BMPs (at least in part).13 Still, these efforts were insufficient to deter pirates, causing shippers to look to governments to shoulder the high economic cost of protection. Further, with pirates attacking less than 1 percent of the shipping traffic off the coast of Somalia and insurance mitigating the risk while spreading costs uniformly across the entire industry, shippers lack significant economic incentive to alter their operations.14 Though attacks endanger crews, make recruiting personnel for dangerous routes more difficult, and stress individual businesses (particularly smaller or thinly capitalized companies), the stability and efficiency of the overall system of international commerce has not been impaired by the pirates.15 Consequently, many shippers operate ships at fuel-efficient, low speeds and choose not to install additional defensive measures.16 Apparently, the risks do not justify industry expenditures. Insurers similarly lack motive to fight pirates. To the insurance industry, ransom payments are straight commercial decision[s] that
11. NSC, COUNTERING PIRACY, supra note 9, at 4; see, e.g., Louis Wasser, Somali Piracy Costs Suez Canal Business, S.F. CHRON., Apr. 29, 2009, http://articles.sfgate.com/ 2009-04-29/news/17192647_1_somali-pirates-suez-canal-somali-coast (noting Egypts economy suffered when Suez Canal revenue dropped 30 percent from 2008 to 2010 as a result of piracy in the Gulf of Aden). 12. BEST MANAGEMENT PRACTICES TO DETER PIRACY OFF THE COAST OF SOMALIA AND IN THE ARABIAN SEA AREA (Version 3, 2010), available at http://www.marisec.org/ BMP%20book_high.pdf. 13. Communique: The Contact Group on Piracy off the Coast of Somalia, Jan. 29, 2010, http://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/100129%20Communique%2 0Contact%20Group%20on%20Piracy.pdf (citing the United States oral report on the findings of CGPCS Working group 3). 14. Out of over 22,000 ships transiting the Gulf annually, only 123 are attacked. Cahal Milmo, Insurance Firms Plan Private Navy to Take on Somali Pirates, INDEPENDENT (London), Sept. 28, 2010, http://www.independent.co.uk/news/world/africa/insurance-firms-plan-privatenavy-to-take-on-somali-pirates-2091298.html. All shippers buy insurance at similar rates, so no single shipper gains a competitive advantage by investing in defenses. 15. Stephen M. Carmel, The Big Myth of Somali Pirates, U.S. NAVAL INST. PROC., Dec. 2010, at 30, available at http://www.usni.org/magazines/proceedings/2010-12/big-myth-somalipirates. 16. This is not to suggest that all shippers shirk their responsibilities to protect their ships and crews.
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are part of the costs of doing business.17 To be clear, insurers want to avoid payouts, but they amass up to $250 million annually in profits from piracy policies.18 Worse yet, insurance payments perversely incentivize more piracy.19 Without market incentives for shippers and insurers, governments and consumers bear the costs. Thus far, the response to Somali pirates has focused on utilizing large naval warships to patrol the seas off Somalia. At present, thirty nations (deploying over forty naval vessels) patrol the Gulf of Aden.20 The costs are staggering. According to United Nations Under-Secretary-General Antonio Maria Costa, a single naval vessel off the Somali coast costs $100,000 a day, and the aggregate annual operational cost of all the nations patrolling is about $1.5 billion.21 These figures far surpass the ransoms paid to pirates, which raises the question: Why do the European Union and the United States allocate scarce resources to the problem when their economies are in shambles? Concerned governments intervene to: (1) deter attacks; (2) enhance maritime safety; (3) prevent destabilization; (4) enforce international law; and (5) appease domestic political pressures. They also fear that if left unchecked, pirates might increase their capabilities and reach, further destabilizing the global economy.22 Beyond financial concerns, nations feel obligated to protect their citizens and vessels. Pirates employ vicious tactics, bullying seafarers with AK-47s and
17. Sebastien Berger, Somali Pirates Drive up World Prices, TELEGRAPH (London), Nov. 18, 2008, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/somalia/ 3479581/ Somali-pirates-drive-up-world-prices.html. 18. Insurers pay out $30150 million in ransoms, but collect over $400 million in premiums. See LAUREN PLOCH ET AL., CONG. RESEARCH SERV., R 40528, PIRACY OFF THE HORN OF AFRICA 2 (2009); see also Pirates Collect $150 Million in Ransoms, CNN, Nov. 21, 2008, http://edition.cnn.com/2008/WORLD/africa/11/21/pirates.ransom.payments/index.html (reporting the International Maritime Bureaus finding that over $150 million had been paid to pirates in 2008); Christopher Helman, The Profits of Piracy, FORBES, Apr. 15, 2010, http://www. forbes.com/2010/04/15/pirates-somalia-shipping-insurance-business-logistics-piracy.html (noting shippers pay $400 million per year in premiums). 19. Baldor, supra note 8 (quoting U.S. Navy Vice Admiral Mark Fox as saying that [i]f we could reroll tape, we would say no ransoms paid, but that cow is out of the barn, referring to ransoms protecting hostages by paying for their release, but encouraging piracy by making it lucrative). 20. Geoffrey York, Somali Pirates More Dangerous than Ever; Worlds Armada Failing in Massive Campaign to Defeat Barefoot Somali Bucaneers, GLOBE & MAIL (Toronto), Dec. 28, 2010, at A14, available at http://www.theglobeandmail.com/news/world/africa-mideast/somalipirates-more-dangerous-than-ever/article1851371 (quoting Deborah Akoth Osiro, a Kenya-based researcher of the Institute for Security Studies). 21. Antonio Maria Costa, The War on Piracy Must Start on Land, N.Y. TIMES, June 8, 2010, http://www.nytimes.com/2010/06/09/opinion/09iht-edcosta.html. 22. PATRICK LENNOX, CAN. DEF. & FOREIGN AFF. INST., CONTEMPORARY PIRACY OFF THE HORN OF AFRICA 9 (2008), http://www.bosasomedia.com/images/right_side_ads/ Contemporary%20Piracy%20off%20the%20Horn%20of%20Africa.pdf; Somali Pirates Risk Choking Key World Trade Route, REUTERS, Apr. 15, 2009, http://www.reuters.com/article/ newsOne/idUSTRE53E2JR20090415.
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rocket-propelled grenade launchers.23 Although one could argue that businesslike pirates might avoid harming their captivesif only out of a desire for ransoms paid for the hostages safe returnconfrontations have grown increasingly violent, with pirates injuring and killing mariners.24 The highlypublicized killings of two American couples, taken hostage while yachting in the Indian Ocean, is but one example of the continuing danger posed by the pirates.25 Governments are reluctant to tolerate lawlessness on the high seas. The British Parliament proclaimed that the appalling amount of violence against the maritime community [is] completely unacceptable, necessitating action to reverse it.26 Pirates ability to take sensitive materials or arms underscores this threat; they have captured ships loaded with thirty-three battle tanks,27 dangerous chemicals,28 liquefied natural gas,29 and crude oil.30 Catastrophic geopolitical or environmental disasters could result from such attacks. But restoring order will be difficult. Over one thousand pirates are active with experts estimating that another 2,500 are in training, and millions more may be waiting for their chance to plunder.31
23. Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations, 40 VAND. J. TRANSNATL L. 1, 3 (2007). 24. In the first nine months of 2010, pirates used guns in 137 incidents and knives in 66. Pirates fired shots at fifty-two ships, killing one seafarer, and injuring twenty-seven. Pirates Intensify Attacks in New Areas, with First Somali Hijacking Reported in Red Sea, INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVICES (Oct. 18, 2010), http://www.icc-ccs.org/news/424pirates-intensify-attacks-in-new-areas-with-first-somali-hijacking-reported-in-red-sea; see, e.g., Colin Freeman, Why Somali Piracy is Boomingby Former Hostage Victim, TELEGRAPH (London), Apr. 11, 2009, http://www.telegraph.co.uk/news/worldnewsafricaandindianocean/ somalia/5142032/Why-Somali-piracy-is-booming-by-former-hostage-victim.html (recounting experience as a hostage receiving occasional death threats and dodging bullets as pirates fought rival gangs). 25. Jason Straziuso & Malkkhadir M. Muhaumed, Somalia Pirate Kill Four Hostage Americans: Reports, HUFFINGTON POST, Feb. 22, 2011, available at http://www.huffingtonpost. com/2011/02/22/somalia-pirates-kill-four_n_826431.html (quoting pirate Muse Abdi as saying [killing hostages] has now become part of our rules.). 26. HOUSE OF COMMONS SELECT COMM. ON TRANSP., EIGHTH REPORT (2006), http://www.publications.parliament.uk/pa/cm200506/cmselect/cmtran/1026/102604.htm. 27. Nick Wadhams, The Somali Pirates: Tanks, but No Tanks, TIME, Oct. 9, 2008, http://www.time.com/time/world/article/0,8599,1848772,00.html. 28. Armed pirates hijacked ship carrying dangerous chemicals. Pirates Hijack German Chemical Tanker with Crew of 22, FRANCE 24, Sept. 5, 2010, http://www.france24.com/en/ 20100508-pirates-hijack-german-chemical-tanker-with-22-crews-somalia-marida-marguerite. In another instance, a ship carrying phosphoric acid was left drifting dangerously. J. Peter Pham, Countering Somali Piracy by Involving the Private Sector, WORLD DEF. REV., Apr. 30, 2009, http://worlddefensereview.com/pham 043009.shtml. 29. Mark Tran, Somali Pirates Hijack German Tanker and Seize Crew of 13, GUARDIAN (London), Jan. 29, 2009, http://www.guardian.co.uk/world/2009/jan/29/somali-pirates-hijacktanker. 30. Pauline Godart, Captured Saudi Supertanker Held in Somali Pirate Lair, AFP, Nov. 19, 2008, http://www.france24.com/en/20081118-pirates-seize-saudi-crude-oilsupertanker-somalia. 31. Martin Plaut, Pirates Working with Islamists, BBC NEWS, Nov. 19, 2008, http://news.bbc.co.uk/2/hi/7737375.stm (referencing JANES TERRORISM AND SEC. MONITOR,
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Piracy also hampers political, social, and economic development within Somalia and further destabilizes the failed state by interrupting humanitarian aid and capital flows. Pirates flush with weaponry and cash manipulate community values, distort markets, and contribute to a breakdown of the rule of law.32 Their domineering presence undermines weak government institutions and bolsters lawlessness.33 Flourishing piracy perpetuates other undesirable outcomes. By intercepting the World Food Programs maritime deliveries, pirates disrupt vital food supplies to 1.1 million people.34 Reports also suggest the Al-Shabaab terrorist group has taken to the seas in search of hostages and cash.35 Further destabilization must be prevented. A. International Naval Response To address the threat posed by the pirates, the international community developed an unprecedented maritime enforcement regime. The United Nations Security Council (Security Council) issued multiple resolutions and call[ed] upon States . . . to take part actively in the fight against piracy on the high seas off the coast of Somalia, in particular by deploying naval vessels and military aircraft . . . .36 Navies are now the predominant mechanism combating piracy with thirty warships from China, the North Atlantic Treaty Organization (NATO), the European Union, the United States, and even Iran.37 Yet the ragtag Somali pirates have the upper hand in the fight against the unified fleet, which UN Secretary-General Ban Ki-moon describes as one of the largest
Unholy High Seas Alliance, Oct. 31, 2008, at 3). 32. Kraska & Wilson, supra note 10, at 43. 33. Martin N. Murphy, Dire Straits: Taking on Somali Pirates, WORLD AFF., July/Aug. 2010, http://www.worldaffairsjournal.org/articles/2010-JulyAugust/full-Murphy-JA-2010.html. 34. Alison Bevege, NATO Warship Hunts Somali Pirates, Escorts Food Aid, REUTERS, June 12, 2009, http://www.reuters.com/article/idUSLC801321. 35. Rob Crilly, Islamist Rebels Join Forces with Pirates to Plunder Weapons from Hijacked Ship, TIMES (London), Sept. 29, 2008, at 34. Some pirate kingpins play dual roles directing attacks and financing the bloody insurgency that destabilizes Somalias weak transitional government. David Jones & Nick Wadhams, We Dont Care About Mercy, We Just Want the Money: Exclusive Interview with Yacht Couples Pirate Captors, DAILY MAIL (London), Mar. 19, 2010, http://www.dailymail.co.uk/news/article-1259346/We-dont-care-mercy-just-want-moneyExclusive-interview-yacht-couples-private-captors.html (citing a pirate). 36. S.C. Res. 1838, U.N. Doc. S/RES/1838 (Oct. 7, 2008); see also S.C. Res. 1814, U.N. Doc. S/RES/1814 (May 15, 2008); S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 15, 2008). 37. NATO to Resume Counter Piracy Operation off Horn of Africa, NATO, http://www.nato.int/shape/news/2009/03/09031a.html; Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, 59 INTL & COMP. L.Q. 141, 141 (2010); Mark McDonald, Chinas Navy to Join Pirate Patrols, N.Y. TIMES, Dec. 25, 2008, http://www.nytimes.com/2008/ 12/26/world/asia/26china.html; Press Release, European Union Council Secretariat, EU Naval Operation Against Piracy (May 2009), http://www.consilium.europa.eu/uedocs/cmsUpload/ 090507%20Factsheet%20EU%20NAVFOR%20Somalia%20%20version%207_EN.pdf; John Knott, United Kingdom: Somalia, The Gulf Of Aden, And Piracy, HOLLMAN FENWICK WILLAN (Jan. 20, 2009), http://www.mondaq.com/ article.asp?articleid=72910; Iran 5 Fleet to Head for the Gulf of Aden, MAR. NEWS, Jan. 21, 2010, http://maritimenews.info/shipping-news/iran-5fleet-to-head-for-the-gulf-of-aden.
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anti-piracy flotillas in modern history.38 Naval forces have pursued deter and disrupt and catch and release strategies rather than mounting a more aggressive offense targeting the pirates command and control networks.39 U.S. and allied naval forces have captured, disarmed, and released over 343 Somali pirates (usually after giving them fuel, food, and water).40 Proponents hoped these strategies would reduce the pirates capabilities and lethalness while avoiding the complexities and costs of prosecution.41 But these approaches lack deterrent effect. As the U.S. National Security Council observed, Somalibased piracy is flourishing because it is currently highly profitable and nearly consequence-free.42 The problem of employing naval forces against pirates goes well beyond matters of policy; the entire military approach is structurally unsound and unsustainable. Despite the impressive array of warships from around the globe, forty vessels cannot effectively patrol an area three-quarters the size of the continental United States.43 Military commanders admit that if merchants are attacked, they are essentially on their own.44 For example, when the Maersk Alabama was attacked, the nearest warship was 300 nautical miles away.45 Assembling a critical mass of warships capable of securing the Indian Ocean would be incredibly costly.46 Even staunch advocates for utilizing military
38. Alisha Ryu, Somali Piracy Exposes Weakness in UN Law of the Sea, Voice of America (Apr. 8, 2009), transcript available at http://www.voanews.com/english/news/a-13-2009-04-08voa67-68785907.html. 39. Under the deter and disrupt strategy, navies calculated that their mere presence and actions like trailing pirates would dissuade attacks. Catch and release entailed boarding pirate vessels, throwing weapons overboard, confiscating grappling equipment, and gathering biometric data before freeing the pirates with enough food and water to reach land. Guilfoyle, supra note 37. See, e.g., Dana Hughes & Kirit Radia, U.S. Navy Ship Grabs More Pirates, Lets Them Go, ABC WORLD NEWS, Apr. 2, 2010, http://abcnews.go.com/WN/pirates-captured-released/story?id= 10270726&page=1 (observing that Combined Maritime Forces continued to practice catch and release into 2010). 40. The United States has released 343 pirates, sought prosecution for 212, and killed 11. Pirate Attacks on the Rise off Somalia, Navy News, Sept. 30, 2009, http://www.defencetalk.com/ pirate-attacks-on-the-rise-off-somalia-22278; Jason Groves, Navy Gives Somali Pirates Food and Water . . . Then Lets Them Sail Off Scot Free, Daily Mail (London), Jan. 28, 2010, http://www.dailymail.co.uk/news/article-1246300/Navy-gives-pirates-food-water--lets-sail-scotfree.html. 41. Guilfoyle, supra note 37. 42. NSC, COUNTERING PIRACY, supra note 9, at 12. 43. Pirates operate across 2.5 million square miles in the Indian Ocean, which is equivalent to approximately 75 percent of the area of the contiguous United States. William Maclean, Somali Pirate Ambition Undeterred by Navy Patrols, REUTERS, Apr. 9, 2009, http://uk.reuters.com/ article/idUKL9657729. 44. Glenn Porter, Set NATO on the Pirates, FORBES, Apr. 16, 2009, http://www.forbes.com/ 2009/04/16/pirates-armed-convoys-somalia-opinions-contributors-nato.html (quoting Commander of the U.S. Fifth Fleet Vice Admiral William E. Gortney as saying the Navy does not have the resource to cover merchant shipping). 45. Mark Mazzetti & Sharon Otterman, U.S. Captain is Hostage of Pirates, Navy Ship Arrives, N.Y. TIMES, Apr. 8, 2009, http://www.nytimes.com/2009/04/09/world/africa/09pirates.html. 46. It would be wishful thinking to expect [the current] sort of a presence to continue for
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forces concede that to combat pirates over vast areas it would be smarter to employ smaller, faster crafts instead of traditional naval vessels: Marines or SEALS on smaller, faster (and obviously far less expensive) armored patrol boats would be the ideal [strategy].47 The benefits of using warships to combat piracy do not justify the costs. Far short of eliminating piracy, naval fleets have merely forced pirates to adjust their operations. Navies have captured some pirates and enhanced security along transit corridors, but pirates have simply shifted their operations to areas which they know are not being patrolled.48 Pirates are intensifying attacks far away from their bases over a vast area . . . the navies cannot realistically cover.49 For example, pirates now conduct attacks up to 1,100 miles from Somali shores, near the Maldives, Seychelles, Oman, and India.50 Despite the presence of military forces, there has been no letup in pirate attacks, and pirates, if anything, appear to be becoming even more effective at capturing ships.51 European Union Naval Force Commander Major General Buster Howes admits, [t]here is no getting away from the fact that strategically a naval presence is not deterring the pirates.52 By moving farther out to sea to areas that are difficult to patrol, pirates have improved their ratio of successful attacks, increased ransom demands, and become more profitable.53 Not surprisingly, pirate business is booming. By escalating ransoms and attacking more vessels, the kingpins have generated substantial revenue to buy sophisticated weaponry and to fund future operations farther from their shores. This expands their capabilities and reach. Unless decisive action is taken to disrupt cash flows, nothing will stop Somali piracy from spreading.
any prolonged period. . . . [W]arships are not a long-term cost effective method of providing commercial vessels with protection from Somali piracy. LENNOX, supra note 22, at 19. 47. Bahar, supra note 23, at 81. 48. J. Peter Pham, Somalia: Prospects for Lasting Peace and a Unified Response to Extremism and Terrorism, 5 (June 25, 2009) (testimony to U.S. House Committee on Foreign Affairs, Subcommittee on Africa and Global Health), available at http://foreignaffairs.house.gov/ 111/pha062509.pdf. 49. INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVICES, supra note 5 (stating pirates intensify attacks in new areas). 50. Andrew Wander, The Spreading Somali Pirate Threat, AL JAZEERA, Mar. 25, 2010, http://english.aljazeera.net/focus/2010/03/2010323132216997663.html. 51. Scott Baldauf, Somali Pirates Fight over Record Ransom, CHRISTIAN SCI. MONITOR, Jan. 18, 2010, http://www.csmonitor.com/World/Africa/2010/0118/Somali-pirates-fight-overrecord-ransom. 52. Press Release, European Union Naval Force SomaliaOperation Atalanta, European Unions Naval Force Counter-Piracy Operation Enters Its 3rd Year (Dec. 8, 2010) http://www.eunavfor.eu/2010/12/european-union%E2%80%99s-naval-force-counter-piracyoperation-enters-its-3rd-year-as-an-extension-to-2012-is-confirmed [hereinafter European Union Naval Force]. 53. Baldauf, supra note 51.
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Even when navies successfully apprehend seagoing pirates, the expense of interdiction, capture, and prosecution outweighs the seemingly negligible deterrent effects. For instance, pirates apprehended at sea in a costly U.S. naval operation were flown to Kenya where they were sentenced to seven years imprisonment.54 Had they been aware of these potential consequences, would it have deterred them? Would they still have taken the risk? And what effect does their incarceration have on the pirate kingpins? Desperate Somalis are willing to gamble for the shot at a better life regardless of the risks, and the kingpins dont care about their minions. Worse yet, nine out of every ten detained pirates are released immediately after capture, which reinforces the notion that piracy is consequence free.55 The light penalties do not justify the heavy resource expendituressuch as those of modern jails, courts, trial, and armadasnecessary to effectuate pirate capture and prosecution. In the rare instances when pirates do receive lengthy sentences, such as thirty years from the United States and twenty-two years from the Seychelles, it is unclear whether other would-be pirates are aware of these punishments and what, if any, effect they have on their likelihood of engaging in piratical acts.56 Strategists suggest the pirate business model is too productive and the rewards simply too huge for them to be deterred from their activities.57 Simply put: the costs incurred by nations employing military forces are grossly disproportionate to the operations deterrent effect. Despite the increased military presence and prosecutions, more Somalis are turning to piracy than ever before.58 Threats of incarceration fail to
54. Jail Sentence for Somali Pirates, BBC NEWS, Nov. 1, 2006, http://news.bbc.co.uk/2/hi/ africa/6105262.stm. Costs of a warship on station are $100,000 per day. Costa, supra note 21. 55. Xan Rice, Somali Pirates Should Face Special Court, Says UN Envoy, GUARDIAN (London), Jan. 26, 2011, http://www.guardian.co.uk/world/2011/jan/26/somali-pirates-jack-langreport (quoting United Nations Legal Advisor Jack Lang); see also Groves, supra note 40 (Somali pirates captured by the Royal Navy are being given fuel, food and water and sent on their way.). 56. US Court Sentences Somali Pirate to 30 Years, BBC NEWS, Nov. 29, 2010, http://www.bbc.co.uk/news/world-us-canada-11871563; Seychelles Jails Somali Pirates for 22 Years, MONTREAL GAZETTE, Dec. 18, 2010, http://www.montrealgazette.com/Seychelles+jails+ Somali+pirates+years/3997055/story.html. 57. European Union Naval Force, supra note 52. 58. The number of pirates increased from 100 in 2005 to over 1,200 in 2008. Diana Lee, Somalia: Whos to Blame for Piracy Spiraling out of Control?, UNIORB, Sept. 11, 2008, http://uniorb.com/RCHECK/somalipiracy.htm. Samuel Chan, Fighting Piracy: Another First for SAF, S. RAJARATNAM SCH. OF INTL STUD. COMMENTS. 1 (Jan. 22 2010), available at http://www.rsis.edu.sg/publications/Perspective/RSIS0102010.pdf (stating that the number of attacks rose from 111 in 2008 to 214 in 2009). Some observers suggest the large naval presence is responsible for a significant decrease in the number of pirate attacks in 2010, but the decrease may have had more to do with an unusually prolonged monsoon season than military presence. Razak Ahmad, Piracy Attacks Down by a Third in Q1 2010: Watchdog, REUTERS, Apr. 21, 2010, http://www.reuters.com/article/idUSTRE63K10O20100421. Only time will tell what effect military presence had on pirates, but initial reports do not look promising.
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discourage Somalis weighing a bleak existence in a failed state where the average worker earns $226 a year and pirates make $30,000 per attack.59 Officials also worry that pirate kingpins are no longer directly participating in attacks. Instead, they are employing children as young as eleven years old to conduct operations.60 The situation is such that younger and younger children in Somalia are being pushed into piracy, which is proving immensely lucrative, while the established pirates, who have got rich, are no longer sailing out on raids.61 The taking of a pirate ship captured by the Indian Navy after a gun battle revealed that over 40 percent of the seaborne pirates were under the age of fifteen.62 Prosecuting these child pirates seems unlikely to interrupt pirate activities or dissuade other youths from joining pirate networks. Thus, prosecution will not interrupt the flow of willing labor to support kingpin operations. Admittedly, the current naval approach and prosecutions do further some laudable objectives, such as providing due process for pirates, a sense of justice for victims, and vindication for the international community. And the collective military efforts of sometimes-adversarial navies reinforce international partnership rather than conflict, the bolstering of faltering regional coast guards builds maritime capacity in the developing world, and military operations do mildly disrupt pirate activities.63 Intangible benefits like military cooperation, joint training, emergency response, and bringing wrongdoers to justice are difficult to quantify. Nevertheless, these benefits do not seem to justify their heavy financial costs, especially when pirates are fast becoming the masters of the Indian Ocean.64 Alternative cost-effective and sustainable steps should be taken proactively to prevent pirates from attacking ships. C. Alternative Approaches to Counter-Piracy In addition to the deployment of naval forces, scholars and policy makers have considered a wide range of alternative counter-piracy approaches, including land-based political and economic development strategies (nationbuilding), maritime patrol areas (intensely guarded transit corridors), arming merchants, positioning private security forces aboard vessels, and developing the capacity of regional states to defend against pirates. A brief review of these
59. Abukar Albadri & Edmund Sanders, Pirates Rule Somali Coast, L.A. TIMES, Oct. 31, 2008, http://articles.latimes.com/2008/oct/31/world/fg-pirates31; U.N. DEV. PROGRAM, SOMALIA SOCIO ECONOMIC SURVEY 2002, at 4 (2003), http://www.un.int/wcm/webdav/site/somalia/shared/ documents/statements/1086724078.pdf. 60. Steven Jones, Child Pirates, MARITIME SECURITY REV. (Mar. 18, 2011), http://www.marsecreview.com/2011/03/child-pirates/. 61. Id. (quoting an Indian official). 62. Id. (noting that twenty-one of sixty-five pirates were below the age of fifteen). 63. Kraska & Wilson, supra note 10, at 44. The U.N. Security Council allowed pursuit in territorial waters. S.C. Res. 1816, U.N. Doc. S/RES/1816 (2008). 64. Rice, supra note 55.
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approaches illustrates the complexity of the Somali piracy problem as well as the capabilities and limitations of various stakeholders. Undoubtedly, a permanent solution to Somali piracy will entail establishing a government capable of restoring law and order while encouraging the growth of industries to provide economic alternatives to piracy. Numerous case studies illustrate that when a credible government exists on land, the surrounding seas will be safe from piracy.65 Indeed, Somali history indicates that the existence of a land-based authority dissuades pirates in the region. Before the Barre regime fell and again during the Union of Islamic Courts brief reign, piracy was rare.66 The recent resurgence occurred only after the U.S.-backed Ethiopian invasion installed the weak Transitional Federal Government (TFG).67 Further, it is obvious that the modern instability, dire conditions, and desperation within Somalia are the predominant causes for piracys growth.68 In the absence of law enforcement, pirates thriveeven going so far as to establish a public stock exchange to raise capital for future attacks.69 Piracy dominates the economy, society, and even government. Pirate leaders confess that the government gets a percentage of every ransom.70 Some regions function effectively . . . [as] pirate kingdom[s].71 In such circumstances, it can be difficult to distinguish between legitimate government functions and piracy. For example, the Somali National Coast Guard gang impounded Taiwanese trawlers for illegally fishing in Somali waters.72 Their
65. See, e.g., Michael Schuman, How to Defeat Pirates: Success in the Strait, TIME, Apr. 22, 2009, http://www.time.com/time/world/article/0,8599,1893032,00.html (noting, among others, the work of Singapore, Indonesia, Thailand, and Malaysia to reduce piracy in the Malacca Straits). 66. Christopher Jasparro, Somalias Piracy Offers Lessons in Global Governance, YALE GLOBAL, Apr. 6, 2009, http://yaleglobal.yale.edu/content/somalias-piracy-offers-lessons-globalgovernance. 67. EMILIANO ALESSANDRI, INSTITUTO AFFARI INTERNAZIONALI, ADDRESSING THE RESURGENCE OF SEA PIRACY: LEGAL, POLITICAL, AND SECURITY ASPECTS 35 (2009), available at http://www.ciaonet.org/wps/iai/0017872/f_0017872_15318.pdf. 68. For a full discussion of the correlation between Somalias socio-economic and political status as a failed state and piracy, see Mario Silva, Somalia: State Failure, Piracy, and the Challenge to International Law, 50 VA. J. INTL L. 553, 55664 (2010). 69. Mohamed Ahmed, Somali Sea Gangs Lure Investors at Pirate Lair, REUTERS, Dec. 1, 2009, http://www.reuters.com/article/idUSTRE5B01Z920091201?sp=true (noting that, for example, the investment of a grenade launcher returned $75,000 in thirty-eight days). 70. Id.; see also David McKenzie, No Way to Stop Us, Pirate Leader Says, CNN, Dec. 1, 2008, http://www.cnn.com/2008/WORLD/africa/12/01/pirate.interview/index.html (quoting one pirate who said [t]hirty percent belongs to [the regional government]). 71. David Blair, Collapse into Anarchy was Perfect for the Pirates of Puntland, DAILY TELEGRAPH (London), Nov. 19, 2008, at 17. 72. Peter Lehr & Hendrick Lehmann, SomaliaPirates New Paradise, in VIOLENCE AT SEA: PIRACY IN THE AGE OF GLOBAL TERRORISM 1214 (Peter Lehr ed., 2007); see also Donna Hopkins, Counter Piracy Update, U.S. DEPT OF STATE (Dec. 3, 2010, 11:00 AM), http://fpc.state.gov/152316.htm (There was a self-serving narrative at one point that Somali pirates were there to protect their waters from the depredations of horrible, illegal fisherman and toxic dumping. I am not going to dispute that . . . but that could never justify the kind of hostage taking that Somalias pirates have wreaked on the international trade routes.).
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actions appeared lawful, until they demanded ransoms for the crew.73 In the foreseeable future, local authorities are unlikely to establish rule of law, effective bureaucracies, and credible deterrence mechanisms.74 Piracy, power struggles, clan warfare, poverty, and religious extremism are likely to continue undermining the formation of government institutions.75 Government officials have virtually no support base, while well-funded and well-armed pirate leaders have gained de facto control over most coastal cities.76 These trends portend difficulty establishing a government capable of curbing piracy. Many politicians, military leaders, and academics agree that the ultimate solution for piracy is on land, but solving that problem is too vexing and risky for outside nations to pursue, so rather than engaging in ground operations, the international community has established a naval task force to patrol for pirates off the coast.77 Moreover, international military forces and even aid organizations are reluctant to engage in stabilization, state building, and humanitarian operations within Somalia. After the dismal failures of the United Nations and the United States in the Black Hawk Down incident, foreign militaries remain wary of
73. Id. 74. Restoring Rule of Law Can Help Solve Piracy Problem in Somalia, UNODC Executive Director Tells Security Council, UNITED NATIONS OFFICE ON DRUGS AND CRIME (Nov. 10, 2010), http://www.unodc.org/unodc/en/frontpage/2010/November/restoring-rule-of-law-can-helpsolve-piracy-problem-in-somalia-unodc-executive-director-tells-security-council.html (quoting United Nations Under-Secretary-General Lynn Pascone as saying deterrence, security and rule of law, and development are necessary to deter pirates, but that solution is some years off). 75. Former rivals, tribal clansmen, and Islamists have united to counter the weak TFG, undermining its legitimacy. See AMNESTY INTERNATIONAL, ROUTINELY TARGETED: ATTACKS ON CIVILIANS IN SOMALIA (2008), available at http://allafrica.com/peaceafrica/resources/ view/00011515.pdf. The TFG is feeble, faction-ridden, corrupt, and incompetent. Stephanie Hanson & Eben Kaplan, Somalias Transitional Government, COUNCIL ON FOREIGN REL. BACKGROUNDER, May 12, 2008, http://www.cfr.org/ publication/12475. Al-Shabaab, radical Islamic extremists, exercise de facto control over southern Somalia. See Mohamed Ahmed, Grenades Kill Five in Somalias Seat of Parliament, REUTERS, Nov. 27, 2008, http://www reuters.com/article/idUSTRE4AQ5MM20081127; Jeffrey Gettleman, Islamists Continue Advance Through Somalia, N.Y. TIMES, Nov. 14, 2008, http://www.nytimes.com/2008/11/14/world/africa/ 14somalia.html; Mohammed Ibrahim & Sharon Otterman, Dozens Killed as Fighting Intensifies in Somalia, N.Y. TIMES, Nov. 21, 2008, http://www.nytimes.com/2008/11/22/world/africa/ 22somalia.html?_r=1&scp=1&sq=Dozens%20Killed%20As%20Fighting%20Intensifies%20in%2 0Somalia%20&st=cse. 76. See David Smith, A Land of Despair, MAIL & GUARDIAN (S. AFR.), Mar. 2, 2009, http://www.mg.co.za/article/2009-03-02-a-land-of-despair; see also Donors Pledge over $250 Million for Somalia, USA TODAY, Apr. 23, 2009, http://www.usatoday.com/news/ washington/2009-04-23-somalia-donors_N.htm (noting that seafaring gangs took in about $80 million in ransom payments in 2008 and that Somalias Western-backed president has not gone after pirates who flash their cash in the coastal cities because pirate leaders currently wield more power than his shaky government.). 77. Peter Spiegel, Gates Says Somalia Government is Key to Problem, WALL. ST. J., Apr. 14, 2009, http://online.wsj.com/article/SB123967368677815883.html (referencing Defense Secretary Robert Gates; quoting Vice Admiral William Gortney and RAND Corp.s Peter Chalk).
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land-based interventions.78 Similarly, many international aid organizations refuse to operate directly from within Somalia and instead oversee their Somali projects from bases in neighboring Kenya.79 Only one maritime patrol nation, France, has sent troops ashore to capture pirates.80 In 2008, the Security Council authorized the use of force against pirates in Somalia; however, just Ethiopia, operating under an African Union mandate, put troops on the ground.81 Even optimistic forecasts predict a long and protracted period until a stable government exists in Somalia.82 Unable to deter pirates with naval forces or to establish a robust government ashore, military leaders and strategists hoped providing security in frequently traveled areas would protect the majority of ships.83 The coalition of nations fighting the pirates has established a Maritime Security Patrol Area (MSPA) through the Gulf of Aden to provide greater defensive coverage and
78. The Battle of Mogadishu, popularly known as Black Hawk Down in reference to the U.S. Army helicopters shot down by militiamen of the Hadr Gidr gang, took place on October 3 and 4, 1993. U.S. Special Forces acting under a United Nations mandate launched a mission to capture a senior Somali warlord in the city center of Mogadishu. During the mission two U.S. helicopters were shot down causing the United States to launch an ultimately unsuccessful rescue mission along with Malaysian and Pakistani troops in a very hostile urban environment. At the end of the engagement, twenty U.N.-backed troops had been killed along with up to seven hundred Somalis. In military circles, the battle represents the challenges of conducting military operations in Somalia and hostile urban settings. For a complete account and description see Mark Bowden, A Defining Battle, PHILA. INQUIRER, Nov. 16, 1997, http://inquirer.philly.com/packages/ somalia/nov16/rang16.asp; see also Walter Clarke & Jeffrey Herbst, Somalia and the Future of Humanitarian Intervention, 75 FOREIGN AFF. 70, 72 (1996) (concluding no massive intervention in a failed stateeven one for humanitarian purposescan be assuredly short by plan, politically neutral in execution, or wisely parsimonious in providing nation-building development aid. Nations do not descend into anarchy overnight, so intervenors should expect neither the reconciliation of combatants nor the reconstruction of civil societies and national economies to be swift.). 79. Seventy NGOs operate out of Kenya, including the World Food Program. David R. Smock, Humanitarian Assistance and Conflict in Africa, J. HUMANITARIAN ASSISTANCE, Jul. 4, 1997, http://jha.ac/1997/07/04/humanitarian-assistance-and-conflict-in-africa; Introduction, SOMALIA NGO CONSORTIUM, http://www.somaliangoconsortium.org (last visited Apr. 3, 2011). 80. In April 2008, French commandos seized pirates ashore and brought them to Paris for prosecution. Aude Vasseur, Lgalit de Larrestation, du Transfrement et du Jugement en France des 6 Preneurs Dotages du Navire le Ponant , Sentinelle, Apr. 20, 2008, http://www.sfdi.org/actualites/a2008/Sentinelle%20145.htm#securitemer1. For video footage and account of rescue, see France Charges Somali Pirates, BBC NEWS, Apr. 18, 2008, http://news.bbc.co.uk/ 1/hi/world/europe/7355598.stm. 81. See S.C. Res. 1816, U.N. Doc. S/RES/1816 (June 2, 2008); S.C. Res. 1838, U.N. Doc. S/RES/1838 (Oct. 7, 2008); S.C. Res. 1844, U.N. Doc. S/RES/1844 (Nov. 20, 2008); S.C. Res. 1846, U.N. Doc. S/RES/1846 (Dec. 2, 2008); S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008). 82. Richard Cornwell, The Middle East Looks Ahead: 2010 Predictions, ALL HEADLINE NEWS, Dec. 26, 2009, http://www.allheadlinenews.com/articles/7017362045# ixzz0aowoQUTs. 83. Coalition Warships Set up Maritime Security Patrol Area in the Gulf of Aden, INTL CHAMBER OF COMMERCE COMMERCIAL CRIME SERVS. (Aug. 26, 2008), http://www.icc-ccs.org/ news/163-coalition-warships-set-up-maritime-security-patrol-area-in-the-gulf-of-aden.
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quicker responsiveness in a concentrated corridor.84 There is much debate about the effectiveness of the MSPA. Critics note that attacks are increasing even in protected areas, which suggests pirates are not particularly wary of run-ins with naval forces and that funneling merchants into predictable paths may actually make it easier for pirates to target them.85 Other strategists defend the MSPA, hypothesizing that the number of attacks would be greater without protection corridors.86 Both Russia and China have taken this approach further by providing warships to escort vessels through the Gulf.87 While this approach may provide benefits to a limited number of ships, to constitute a solution for the majority of the merchant traffic such an approach would require many escorts while abandoning the many other ships traveling outside of the major shipping lanes.88 Either way, protecting ships traveling across vast seas requires substantial resource expenditures. Other experts advocate arming merchant vessels as the lowest cost, and quickest means of deterring piracy.89 This strategy presupposes that pirates would be less likely to attack armed ships. Others disagree. The International Maritime Organization (IMO) warns that arming merchant vessels may endanger crews by placing them in battles with well-armed pirates or by subjecting seamen to greater cruelty if captured.90 Instead, the IMO advocates nonlethal tools like fire hoses, acoustic devices (like sonic cannons), electrical fences, safe rooms, and tactical maneuvers.91 Further, many nations do not allow merchants to carry weaponry to their ports, which raises the question of how to get weapons on and off ships.92 Nevertheless, some American politicians propose subsidizing military-like forces aboard merchants.93 The
84. Id.; International Piracy on the High Seas: Hearing Before the Subcomm. on Coast Guard and Marine Transp. of the H. Transp. and Infrastructure Comm., 111th Cong. 9 (2009). 85. Pirate Attack Density in the Gulf of Aden (2008), UNOSAT (Nov. 26, 2008), http://unosatmaps.web.cern.ch/unosat-maps/SO/Piracy/UNOSAT_SO_PirateDensity_Nov08_Lowres_v1.pdf. 86. John Patch, Send the Warships Home, ARMED FORCES J., Apr. 2010, http://www.armedforcesjournal.com/2010/04/4537286. 87. Russian Destroyer Escorts 5-Ship Convoy off Somali Coast, RIA NOVOSTI, May 20, 2009, http://www.en.beta.rian.ru/russia/20090520/155049607.html; Russian, Chinese Warships Escort 23-vessel Convoy off Somalia, RIA NOVOSTI, Sept. 21, 2009, available at http://www.shebacss.com/en/media-center-30512.html. 88. Porter, supra note 44 (noting convoys worked in World War II against hard-to-kill Uboats). 89. D. Joshua Staub, Letters of Marque: A Short-Term Solution to an Age Old Problem, 40 J. MAR. L. & COM. 261, 264 (2009). 90. Circular, Intl Mar. Org., Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, MSC.1/Circ. 1334, at 12 (June 23, 2009), available at http://www.marad.dot.gov/documents/ MSC1_Circ1334.pdf. 91. Id. at 11. 92. Staub, supra note 89, at 266 (arguing ships could throw arms overboard or risk penalties). 93. See Christopher Torchia, U.S. Weighs Arming Ships to Fight Piracy, MSNBC, Aug. 13, 2009, http://www.msnbc.msn.com/id/32405657/ns/world_news-europe.
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idea appears to have taken hold. The U.S. Maritime Transportation Security Act provided the U.S. Coast Guard with the power to issue a security directive to all American vessels requiring them to supplement ships crew with armed or unarmed security depending on the piracy threat and to embark military security personnel.94 Military leaders promote private security on ships as a best practice to prevent pirate attacks.95 Xe Services, formerly Blackwater, recently began providing armored escorts for transiting vessels.96 In some cases, embarked private security forces stalled pirates until naval warships arrived.97 Citing these incidents, some commentators advocate security teams with rifles, grenades, and night scopes onboard every ship.98 While this option might be less costly than stationing a naval fleet in the area, it is still prohibitively and unnecessarily expensive.99 Already operating with almost no profit margin due to the global recession, shippers would have difficulty assuming these additional costs.100 Moreover, teams on every ship would be extraneous since pirates attack very few of the 20,000 ships transiting the Gulf of Aden. International circles tend to support cooperative regional approaches focused on building the capacity of Somalias neighbors to patrol the coast. U.N. Secretary-General Ban Ki-moon advocates a long-term strategy to promote the closure of pirates shore bases and effectively monitor the coastline, recommending that Member States consider strengthening the capacity of the coast guards both in Somalia and the region.101 Such an approach proved successful in combating pirates in the Straits of Malacca.102
94. Pirates Ahead: Are You Ready?, MARINE LOG MAG., July 1, 2009, http://www.allbusiness.com/government/government-bodies-offices-government/12657301-1.html. 95. Nathan Schaeffer, M/V Maersk-Alabama Repels Suspected Pirate Attack, U.S. FIFTH FLEET COMBINED MAR. FORCES (Nov. 18, 2009), http://www.cusnc.navy.mil/ articles/2009/195.html (quoting Vice-Admiral Bill Gortney); see also Alan Cowell, Pirates Attack Maersk Alabama Again, N.Y. TIMES, Nov. 18, 2009, http://www.nytimes.com/ 2009/11/19/world/africa/19pirates.html (quoting Vice-Admiral Bill Gortney, here, suggesting that merchant mariners can take pro-active action to prevent being attacked, including the maritime industrys best practices such as embarking security teams.). 96. Kraska & Wilson, supra note 10, at 42. 97. Israeli guards on a cruise ship fought off pirates until a Spanish warship responded. Mike Pflanz, Cruise Ship Opens Fire to Beat Back Somali Pirates, TELEGRAPH (London), Apr. 26, 2009, http://www.telegraph.co.uk/news/worldnews/piracy/5224895/Cruise-ship-opens-fire-tobeat-back-Somali-pirates.html; see also Baldauf, supra note 51 (describing March 2010 gun battle of guards defending MV Almezaan). 98. Steven Schippert, Somali Piracy: A Solution, THREATS WATCH, Apr. 9, 2009, http://threatswatch.org/commentary/2009/04/somali-piracy-a-solution. 99. With over 20,000 ships annually, many $10,000 per day security squads would be needed. Berger, supra note 17. 100. Safe Harbours?, CNBC BUSINESS, Mar. 2010, http://www.cnbcmagazine.com/ story/safe-harbours/1106/1 (citing a 25 percent drop in global trade by sea and oversupply of cargo vessels as reasons for tough competition and slim profits margins). 101. Pham, supra note 48 (reporting Secretary-General Ban Ki-moons pirate fighting plan pursuant to Security Council resolution 1846 (2008)); U.N. Doc. S/2009/146 (Mar. 16, 2009). 102. Asian nations halted piracy in the Straits of Malacca via the Regional Cooperation
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Several African initiatives appear promising. Ten countries have already signed the Djibouti Code, a pact to facilitate regional coordination and training.103 Kenya, Tanzania, and Yemen are establishing, with IMO assistance, a joint center to coordinate maritime operations, patrols, and intelligence.104 But regional coast guards will not be a panacea. As pirates become increasingly sophisticated and operate farther from land, these coastal patrols and regional tracking centers will encounter greater difficulties fighting pirates. Another recent regional strategy utilizes local port authorities to ensure ships are configured to discourage pirate attacks. Under the International Ship and Port Facility Security (ISPS) Code, governments, shipping companies, and port authorities have an obligation to ensure merchant vessels are equipped to detect security threats and take preventive measures against security incidents affecting ships or port facilities used in international trade.105 Regional officials could review safety and security plans for merchant mariners and assess ship vulnerability. Their reports could be sent to insurance companies for consideration in determining premiums. If vulnerable ships had to pay more, shipping companies likely would change their ways. However, this circuitous approach does not directly discourage pirate attacks. While the efforts discussed above hold promise for achieving some limited objectives, they do not provide a strategy for proactively dismantling pirate networks and uprooting the kingpins that fund, direct, and profit from piracy.
Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP). W. Michael Reisman & Bradley T. Tennis, Combating Piracy in East Africa, 35 YALE J. INTL L. 14, 18 (2009). 103. The Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the western Indian Ocean and the Gulf of Aden signatories includes Djibouti, Egypt, Ethiopia, Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania and Yemen (Egypt joined after the other nine). Nine Countries Sign Deal to Fight Somali Piracy, AL ARABIYA, Jan. 29, 2009, http://www.alarabiya.net/articles/2009/01/29/65299.html. Code of Conduct text accessible via INTL MAR. ORG., Sub-regional Meeting to Conclude Agreements on Maritime Security, Piracy and Armed Robbery Against Ships for States from the Western Indian Ocean, Gulf of Aden and Red Sea, Apr. 3, 2009, http://www.sjofartsverket.se/pages/20647/10214.pdf. See also Pham, supra note 48 at 24 (explaining the benefits of regional efforts: Coastal patrol forces would not only be more sustainable from the fiscal point of view, but, precisely because they would concentrate on the littorals [coastal waters], have a more manageable area of responsibility than the naval forces which are currently sailing all over the western Indian Ocean. Moreover a coast guard is within the reach of states in the region as well as some of the effective authorities in Somalia.). 104. Guilfoyle, supra note 37, at 150. 105. The code was an amendment to the 1974 Safety of Life at Sea (SOLAS) Convention, which came into force in 2004. International Code for the Security of Ships and of Port Facilities, pt. A 1.2(1), available at http://www.pvspan.com/plans/docs/isps_code_23pages_Dec02.pdf.
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Legally, pirates have long been considered enemies of all mankind.106 International law, as codified in the authoritative 1982 United Nations Convention on the Law of the Sea (UNCLOS), grants universal jurisdiction so that every State may seize a pirate ship on the high seas, or in any other place outside the jurisdiction of any State, but also includes complicit functions, like inciting and facilitating piratical activities, within the definition of piracy.107 Article 100 states that repressing piracy is the collective duty of every nation, even outside its jurisdictional waters.108 In the Somali context, the Security Council provides greater authority to interdict pirates by passing several resolutions that permit enforcing nations to apply force to suppress piracy using all necessary means, even within Somali territorial waters.109 Going further, the Security Council even extends authority for enforcers to pursue pirates onto land.110 Consequently, multiple jurisdictional avenues exist to interdict pirates and disrupt their criminal networks. But a framework for a sustainable, cost-effective deterrence is still lacking.
106. Kontorovich, supra note 1, at 251; see also United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844) (noting that pirates commit[] hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretense of public authority). 107. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS], arts. 10001, 105 (defining piracy as any illegal act of violence, detention, or depredation committed for private ends by the crew, or the passengers, of a private ship and directed against a ship, aircraft, persons, or property on the high seas or in any other place outside the jurisdiction of any state). Coastal states may exercise domestic legal jurisdiction in the territorial sea (extending twelve nautical miles from the coastal baseline). UNCLOS Art. 2, 3; see also Barry Hart Dubner, Recent Developments in the International Law of the Seas, 33 INTL L. 627, 632 (1999). 108. UNCLOS, supra note 107, at art. 100. 109. See S.C. Res. 1816, 7, U.N. Doc. S/RES/1816 (June 2, 2008); S.C. Res. 1838, U.N. Doc. S/RES/1838 (Oct. 7, 2008), available at http://www.undemocracy.com/S-RES-1838(2008); S.C. Res. 1846, 10, U.N. Doc. S/RES/1846 (Dec. 2, 2008) (extending authorization for another year). 110. Pursuant to Security Council Resolution 1851: States and regional organizations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia for which advance notification has been provided by the TFG to the Secretary-General may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG . . . to bring to justice those who are using Somali territory to plan, facilitate or undertake criminal acts of piracy and armed robbery at sea. In short, nations can intervene ashore after giving notice to the TFG. S.C. Res. 1851, 67, U.N. Doc. S/RES/1851 (Dec. 16, 2008). See also Press Release, UN Dept of Pub. Info., Security Council Authorizes States to Use Land-based Operations as Part of Fight Against Piracy Off Coast, Unanimously Adopting 1851 (2008) (Dec. 16, 2008) http://www.un.org/News/Press/ docs/2008/sc9541.doc.htm; India Gets the Right of Hot Pursuit in Somali Waters, CNN-IBN, Nov. 20, 2008, http://ibnlive.in.com/news/india-gets-the-right-of-hot-pursuit-in-somali-waters/ 78607-3.html?from=rssfeed.
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For instance, even if caught, pirates are unlikely to face prosecution and conviction. In theory, the widely ratified Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention), which requires member states to prosecute pirates brought to their countries, provides an international legal framework for prosecution,111 but in practice the process is complex, political, and unpredictable. Nascent African and Yemeni legal systems are notoriously lacking in resources for law enforcement and judiciary [processes].112 These countries may also impose seemingly unfair punishments, lack due process protections, or house prisoners in penal facilities that do not meet international standards for humane treatment. As such, littoral nations may be inappropriate venues for trials.113 But there is hope. Regional nations, signatories of the Djibouti Code aimed at combating piracy, haveat least on papercommitted to developing the capacity to enforce international laws against pirates.114 And, to help these
111. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, S. TREATY DOC. NO. 1011 (1995), 1678 U.N.T.S. 221 [hereinafter SUA Convention]; see also Workshop Commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-Abdallah, Nairobi, Kenya, Nov. 1021, 2008, Piracy Off the Somali Coast, Final Report 26 (Nov. 21, 2008), available at http://www.imcsnet.org/imcs/docs/somalia_piracy_intl_experts_report_consolidated.pdf [hereinafter UN Workshop] (The SUA Convention provides a legal basis to effect the rapid transit ashore of pirates captured at sea where both the flag State and the receiving State are States Parties to SUA. The receiving State Party to SUA is required to make an immediate inquiry into the facts, and to notify other State Parties that might have jurisdiction as to whether it intends to exercise its jurisdiction. The receiving State Party is required to extradite such offenders to another State Party with jurisdiction or to submit the case to its competent authorities for the purpose of prosecution. Where one or both of the States concerned are not Parties to SUA, ad hoc arrangements would have to be made to effect the transfer ashore. If the receiving State is unwilling to accept the offender from the ship, the compulsory dispute settlement provisions of SUA are unlikely to provide a timely resolution.). As of 2011, 157 states had become party to the Convention. International Maritime Organization, Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions 393, updated Mar. 31, 2011, available at http:// www.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20-%202011.pdf. 112. Kraska & Wilson, supra note 10, at 46. 113. Id.; see, e.g., Six Bucs Sentenced to Die, REUTERS, May 19, 2010, available at http://www.nypost.com/p/news/international/six_bucs_sentenced_to_die_NlYyBV4t12uIlP4g8Ge MNP?CMP=OTC-rss&FEEDNAME= (reporting Yemen sentencing pirates to death for their crimes). Human rights organizations chastise Yemen for torture and poor conditions within prisons. Robert Winslow, Crime and Society: A Comparative Criminology Tour of the World: Yemen, SDSU, http://www-rohan.sdsu.edu/faculty/rwinslow/asia_pacific/yemen.html (last visited Apr. 11, 2011) (noting that a young pregnant woman, Sabah Seif Salem, died from torture while in custody, that judges hold prisoners without charge, and that attorneys for defendants are not legally required). 114. High-level Meeting in Djibouti Adopts a Code of Conduct to Repress Acts of Piracy and Armed Robbery Against Ships, INTL MAR. ORG. (Jan. 30, 2009), http://www.imo.org/ Newsroom/mainframe.asp?topic_id=1773&doc_id=10933 (stating nations will fully co-operate in the arrest, investigation and prosecution of persons who have committed piracy or are reasonably suspected of having committed piracy; seize suspect ships and the property on board such ships; and rescue ships, persons, and property subject to acts of piracy and that [t]hese acts
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nations fulfill their obligations, international partners are assisting signatories by providing legal training, funding due process initiatives, and bringing prisons up to international standards.115 Yet regional nations lack the financial and political wherewithal and legal infrastructure necessary to prosecute pirates. Tanzania declined to do anything; [the] Seychelles took on a few but is too small to cater for too many, Yemen took on a few but lacked sufficient capacity.116 Kenya inked deals with several nations to accept pirates for trial, but Kenyan politicians became concerned that its judicial resources were insufficient, its prisons overcrowded, and its international status might be tarnished if it became a pirate dumping ground.117 In early 2010 Kenya announced that it would no longer accept pirates.118 Only after the United Nations guaranteed funding to a special Kenyan court in Mombasa to try pirates brought in by foreign navies did the government reverse its position.119 But the issue is far from resolved: in November 2010 a Kenyan High Court judge ruled that there was no jurisdiction in Kenyas courts to try cases of piracy on the high seas.120
would be consistent with international law). The Code of Conduct recognizes the extent of the problem of piracy and armed robbery against ships in the region and, in it, the signatories declare their intention to co operate to the fullest possible extent, and in a manner consistent with international law, in the repression of piracy and armed robbery against ships, with a view towards sharing and reporting relevant information through a system of national focal points and information centres; interdicting ships suspected of engaging in acts of piracy or armed robbery against ships; ensuring that persons committing or attempting to commit acts of piracy or armed robbery against ships are apprehended and prosecuted; and facilitating proper care, treatment, and repatriation for seafarers, fishermen, other shipboard personnel and passengers subject to acts of piracy or armed robbery against ships, particularly those who have been subjected to violence. . . . Code of Conduct is open for signature by the 21 countries in the region, of which ninenamely, Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles, Somalia, United Republic of Tanzania and Yemensigned it during the closing ceremony in Djibouti. Id. 115. The United Nations Office of Drugs and Crime helps states by training prosecutors, locating and producing witnesses, facilitating international legal cooperation . . . funding defence lawyers for pirates, and bringing prison conditions up to international standards. Hearings Before the Subcomm. on International Organizations, Human Rights and Oversight of the H. Foreign Affairs Comm. 111th Cong. (2009) (testimony of Antonio Maria Costa), available at http://www.unodc.org/unodc/en/about-unodc/speeches/2009-14-05.html. In April 2009, U.S. Secretary of State Hillary Clinton unveiled a comprehensive antipiracy plan, which included resources to help littoral states address regional stability concerns. Hillary Rodham Clinton, U.S. Secy of State, Announcement of Counter-Piracy Initiatives, U.S. Department of State, Apr. 15, 2009, http://www.state.gov/secretary/rm/2009a/04/121758.htm. 116. Sarah Wambui, Kenya Backtracks on Pirate Deal, CAPITAL NEWS, Apr. 1, 2010, http://www.capitalfm.co.ke/news/Kenyanews/Kenya-backtracks-on-pirates-deal.html. 117. Q&A: What Do You Do with a Captured Pirate?, BBC NEWS (Nov. 22, 2010, 18:46), http://www.bbc.co.uk/news/world-africa-11813168. 118. Id. 119. Id. 120. Id.
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In contrast to the limited capacity of littoral states on the Gulf of Aden, nearby India, which maintains a strong navy and a well-developed judicial system, may prove to be a regional maritime security leader. The Indian government has demonstrated its willingness to use lethal force against pirates.121 After the 2008 Mumbai terrorist attack, which was launched from a hijacked ship, India may be even more inclined to take an aggressive stand against piracy in the Indian Ocean.122 India stressed its potential role during a recent IMO meeting by calling for the establishment of multinational maritime peacekeeping efforts in the Gulf of Aden under the auspices of the United Nations.123 With developing naval capabilities, political will, bases in the region, and an established (if slow) legal system, India could assume the lead in prosecuting pirates by spearheading a regional effort.124 The cost of trying pirates in Indian courts is likely to be less than trying them in the West or developing special courts in Yemen or Eritrea that meet international standards. Even so, an Indian-focused approach would run into the same problems of resource limitations as coalition forces. While regional efforts by India or Somalias neighbors might be helpful in bringing some pirates to justice, they are unlikely to dismantle global piracy networks. Much of the legal research surrounding piracy has focused on issues of prosecution. A number of scholars have discussed the dizzying process of determining which country should be responsible for bringing captured pirates to justice.125 Two key points of agreement emerge from this literature: (1) On the high seas, any nation can assert jurisdiction because piracy is a universal crime;126 and (2) most states prefer to avoid the expense and risks associated with prosecution.127 Theoretically, the state where a vessel registersthe flag
121. Although the Indian Navy drew criticism in November 2008 after it sunk a hijacked Thai trawler being used as a mothership for pirates, the Indian maritime forces have continued their antipiracy mission and averted twenty-two attempted attacks. See Anuj Chopra, India Leads Fight Against Somali Pirates, CHRISTIAN SCI. MONITOR, Nov. 20, 2008, http://www.csmonitor.com/World/2008/1120/p07s02-wogn.html, Indian Navy: Somali Pirate Attack Foiled, MSNBC, May 29, 2009, available at http://www.msnbc.msn.com/id/30999486; Rajiv Bhatia, Horn of Africa: Why India Should Care More, THE HINDU TIMES (Chennai), Dec. 17, 2010; http://www.thehindu.com/opinion/ lead/article959202.ece?homepage=true. 122. Praveen Swami, Pointed Intelligence Warnings Preceded Attacks, HINDU TIMES, Nov. 30, 2008, at 15; see also Angel Rabasa et al., The Lessons of Mumbai, Occasional Paper, RAND, 2009, at 34; Bhatia, supra note 1218 (noting that top Indian diplomats suggest India should take a more prominent role against Somali pirates). 123. See India Calls for UN Force to Deter Pirates off Somalia, TIMES OF INDIA (New Delhi), Nov. 13, 2008, http://timesofindia.indiatimes.com/India/India_calls_for_UN_force_to_ deter_pirates_off_Somalia /articleshow/3710102.cms. 124. Bhatia, supra note 1218. 125. These arguments are detailed and draw on many strands of international law, which I will not attempt to duplicate here in full. 126. See generally S.C. Res. 1851, supra note 366 (calling on all nations to prosecute pirates, if capable). 127. Jason Keyser, Guarded Corridor Limiting Somali Piracy, NAVY TIMES, Nov. 10, 2008, http://www.navytimes.com/news/2008/11/ap_piracy_somalia_111008 (observing that naval
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statehas the greatest interest in protecting that ship. But in reality most vessels are registered to flag of convenience states, like Panama, Liberia, and Mongolia, incapable or unwilling to ensure the safety of their registered ships.128 While some of the pirates home states might be well situated to provide justice, domestic authorities in the Somali context are either nonexistent, corrupt, controlled by the pirates, or likely to impose disproportionate punishments.129 States whose citizens are often hostages, like Ukraine and the Philippines; vessel-owner states, like the United States, Japan, EU countries, and Singapore; cargo-owner states; origination and destination states; capturing states; or nearby nations are all sufficiently tied to the problem to bear a responsibility to act, yet only in rare circumstances where their immediate interests are challenged do they make any effort to bring pirates to justice.130 The ultimate consequence of this reluctance to prosecute is a lack of justice. Despite a growing consensus that universal jurisdiction exists, few nations seem willing to prosecute Somali pirates.131 The United States tried the one surviving Somali pirate from the Maersk Alabama attack and five others who mistakenly attempted an attack on a warship,132 the French prosecuted three in Paris,133 the Dutch convicted a small group,134 Germany is trying ten,135 and five are awaiting trial in South Korea.136 But outside of these limited examples, developed nations have refused to prosecute pirates. Countries are understandably reluctant, due to the costs of transport, housing, security, legal representation, and asylum claims, to bring thousands
forces captured and released roughly sixty pirates because no country has been willing to bring them to trial); see generally Guilfoyle, supra note 37, at 142 (noting most countries will release pirates rather than bear the political, economic, and social costs). 128. Flags of convenience states refuse to prosecute and imprison pirates that attack their vessels. These open registries, like those of Panama or Liberia, may be unable to prosecute due to limitations on judicial and logistical resources. Kraska & Wilson, supra note 10, at 46. 129. ELIZABETH ANDERSEN ET AL., AM. SOCY OF INTL LAW, SUPPRESSING MARITIME PIRACY: EXPLORING THE OPTIONS IN INTERNATIONAL LAW 9 (workshop report), available at http://www.asil.org/files/suppressing-maritime-piracy.pdf. 130. Kontorovich, supra note 1, at 251. 131. Id. at 25152. 132. Press Release, U.S. Dist. Atty for the S. Dist. of N.Y., Somalian Pirate Brought to U.S. to Face Charges for Hijacking the Maersk Alabama and Holding the Ships Captain Hostage (Apr. 21, 2009), http://newyork.fbi.gov/dojpressrel/pressrel09/nyfo042109.htm; Sentencing Delayed for Somali Pirate in Maersk Alabama Hijacking, CNN, Oct. 19, 2010, http://articles.cnn.com/2010-1019/justice/new.york.pirate.sentencing_1_somali-pirate-maersk-alabama-safe-passage?_s=PM:CRIME; Robert Mackey, Somali Pirates Convicted in Virginia, N.Y. TIMES (Dec. 19, 2010, 5:45PM), http://thelede.blogs.nytimes.com/2010/11/24/somali-pirates-convicted-in-virginia. 133. Worlds Most Pirate-Infested Waters, CNBC, Nov. 21, 2008, slide 9, http://www.cnbc.com/id/27844664/World_s_Most_Pirate_Infested_Waters. 134. Toby Sterling, Dutch Court Sentences 5 Somali Pirates to 5 Years, WASH. TIMES, June 17, 2010, available at http://www.washingtontimes.com/news/2010/jun/17/dutch-courtsentences-5-somali-pirates-5-years. 135. Mackey, supra note 132. 136. John M. Glionna, 5 Suspected Pirates from Somalia Arrive in South Korea to Face Trial, L.A. TIMES, Jan. 31, 2011, at AA2.
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of pirates into their legal systems. For example, the British and Danish navies release captured pirates onto Somali beaches to avoid the asylum claims that may result if the pirates were brought to Europe for trial.137 Although scholars have questioned the legitimacy of such concerns, European governments fear that pirates will seek asylum should they be tried.138 In other places, the prosecution and imposition of significant punishments against young Somali pirates violates notions of fairness and justice. Harshly punishing these children, who are victims of desperation and exploitation by kingpins, seems unfair. For example, in Malaysia three alleged child pirates under fifteen years old could face the death penalty if convicted.139 In the U.S. prosecution, attorneys defending a young pirate said they would ask for leniency rather than punishment on account of their clients young age.140 While jurisdictional questions of where and how to try pirates are important, the scholarly and diplomatic focus on prosecuting individual pirates neglects the more crucial problem of how to stop systematic maritime piracy networks. In the absence of capable land-based governments, global powers must bring order to the seas by limiting the capabilities of pirate networks. This can be achieved by making piracy unprofitable not only for the young Somalis at sea, but also for those who control the operationsthe elaborate, organized crime syndicates operating out of London, Dubai, and other Persian Gulf states.141 An effective enforcement mechanism must target these ring leaders and their assets instead of their seagoing pawns. II. LETTERS OF MARQUE The solution to piracy in the waters off of Somalia may lie in letters of marque, which are legal authorizations enabling private entitiesprivateers to use force on behalf of the state to harass or prey on vessels belonging to
137. Cf. Jeffrey Gettleman, Pirates Outmaneuver Warships off Somalia, N.Y. TIMES, Dec. 15, 2008, http://www.nytimes.com/2008/12/16/world/africa/16pirate.html?pagewanted=1&_r=1 (Several times this year, the Danish Navy captured men they suspected to be pirates, only to dump them on shore after the Danish government decided it did not have jurisdiction.); Spencer Swartz, Somali Pirates Face Trial in Dutch Court, WALL ST. J., May 29, 2010; Q&A: What Do You Do With a Captured Pirate?, BBC NEWS, Jan. 25, 2011, http://www.bbc.co.uk/news/worldafrica-11813168. 138. For full discussion, see Yvonne Dutton, Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice?, 34 FORDHAM INTL L.J. 236 (2010). 139. Brad Lendon, 3 Teenage Boys Among 7 Somalis Facing Death in Malaysia Piracy Case, CNN, Feb. 11, 2011, http:// http://news.blogs.cnn.com/2011/02/11/3-teenage-boys-facedeath-in-malaysia-piracy-case/. 140. Scrawny Somali Thrust into Piracy Spotlight, MSNBC, Apr. 21, 2009, http://www.msnbc.msn.com/id/30325382/ns/world_news-africa/. 141. See Giles Tremlett, This Is LondonThe Capital of Somali Pirates Secret Intelligence Operation, GUARDIAN (London), May 11, 2009, http://www.guardian.co.uk/world/ 2009/may/11/somalia-pirates-network.
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foreign nations or individuals.142 The Framers incorporated letters of marque into the U.S. Constitution to protect Americas seagoing interests, and Congress can issue them to encourage private, profit-making military ventures to undertake activities that align with the national security interests of the sovereign. In both the United States and abroad, privateers provided cost-effective services without the long-term employment commitments and capital investment associated with the use of the armed forces. Under the system, [m]erchants underwrote the venture and were guaranteed between onethird and one-half of the returns; captain and crew shared the remainder. As a risk speculation, based upon hopes of seizing enemy merchant shipping, the crews were commonly enlisted on a No Prize, No Pay basis. The merchants gambled their ship and its outfit, and the seamen gave their time and risked their lives. Quite often these speculations paid fine dividends.143 Throughout Americas history, from the Barbary Wars to World War II, Congress authorized letters of marque so the United States could flexibly and cost-effectively respond to maritime threats. Although essential in early conflicts, recently letters have been issued more sparingly due to concerns that the government could not properly supervise privateers and because Americas modern navy was better suited for the mission. Now, technology makes it possible for governments to exercise the control necessary to meet international law standards for privateers and the rigors of public scrutiny, while bulky naval assets seem ill suited to battle pirates over expansive areas. A. Historical Development of Letters of Marque and Reprisal Initially, letters of marque provided a form of international redress for wrongful maritime takings. The doctrine evolved out of the concept of international reprisals.144 Under international law, states are the primary actors;
142. Privateers are owned, equipped, and armed by private individuals commissioned by a belligerent power to go on cruises and make war upon the enemy, usually by preying on his commerce. BLACKS LAW DICTIONARY 1195 (6th ed. 1990); see also J. Gregory Sidak, The Quasi War Casesand their Relevance to Whether Letters of Marque and Reprisal Constrain Presidential War Powers, 28 HARV. J.L. & PUB. POLY 465, 468, 472 (2005) (quoting GEORG FRIEDRICH DE MARTENS, AN ESSAY ON PRIVATEERS, CAPTURES, AND PARTICULARLY ON RECAPTURES, ACCORDING TO THE LAWS, TREATIES, AND USAGES OF THE MARITIME POWERS OF EUROPE (Thomas Hartwell Horne trans. 1795)) (noting privateering consists of the expeditions of private individuals during war, who, being provided with a special permission from one of the belligerent powers, fit out at their own expense, one or more vessels with the principal design of attacking the enemy, and preventing neutral subjects or friends from carrying on with the enemy a commerce regarded illicit.). 143. JAMES G. LYDON, PIRATES, PRIVATEERS, AND PROFITS 25 (1970). 144. 2 EMMERICH DE VATTEL, Le Droit des Gens, ou Principles de la Loi Naturelle, Appliqus a la Conduite et aux Affaires des Nations et des Souverains (The Law of Nations) ch. 18, sec. 342 (1758) in THE CLASSICS OF INTERNATIONAL LAW 228 (James Brown Scott ed.,
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consequently they were responsible for seeking international redress for their subjects who had been injured by foreign sovereigns and their subjects.145 If diplomacy failed, the injured partys sovereign could issue a letter of marque authorizing the victim to seize the property of the offender or the offenders countrymen to compensate for the damage done.146 This evolved into a wartime mechanism allowing sovereigns to authorize privateers on the high seas to seize foreign ships and property in exchange for part of the proceeds.147 The practice had the distinct advantage of weakening enemies at no direct cost to the state. Letters of marque have a long history. Deeply rooted in the common law as a right acknowledged by all nations, letters of marque date back to 1205.148 Henry II issued licenses in 1243 to coastal seafarers to annoy our enemies by sea or by land, even though the individuals had not suffered personal loss.149 During the fourteenth and fifteenth centuries, procedural safeguards to provide rudimentary due process emerged, such as admiralty courts to adjudicate disputes.150 Simultaneously, letters of marque came to be used primarily as a means of conducting public warfare with private actors, rather than as an instrument for private retribution during peacetime.151 Keeping with the idea that privateers were arms of state war making, it became customary for governments to commission privateers.152 During the Dutch
1912) (Vattel instructs if a nation has taken possession of what belongs to another [and] refuses to pay a debt or repair the injury . . . the latter may seize something belonging to the former, and apply it to her own advantage, till she obtains payment due.). William Blackstone similarly explained, letters of marque and reprisal (words . . . signifying . . . a taking) . . . may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made . . . . 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 25859 (1850). 145. VATTEL, supra note 144, at ch. II, sec. 72 (1758). 146. Vattel asserts that we seize the property of the subject, just as we would that of a state or sovereign, so that personal property of individuals could be seized as property under the control of the state. FRANCIS H. UPTON, THE LAW OF NATIONS AFFECTING COMMERCE DURING WAR 95 (1863) (paraphrasing Vattel). 147. Cf. VATTEL, supra note 144, at ch. VII, sec. 81 (Even the property of individuals is, in the aggregate, to be considered as the property of the nation, with respect to other states.). 148. Even opponents of letters of marque recognized as doctrine that one government is entitled to enforce from another, redress for all wrongs done to subjects of the government making the application for redress, and if that redress is denied, it may justly be obtained by reprisals from the nation so refusing. UPTON, supra note 146. The practice of sovereigns authorizing private actors to conduct acts of war dates back to the English Grant to the Captor of Ships in 1205. ENGLISH GRANT TO THE CAPTOR OF SHIPS (1205), http://www.hillsdale.edu/dept/History/ Documents/War/Med/Naval/1205-Captor.htm. 149. FRANCIS R. STARK, The Abolition of Privateering and the Declaration of Paris, in 8 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 227, 271 (1897). 150. Theodore Cooperstein, Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering, 40 J. MAR. L. & COM. 221, 224 (2009); see also LORD EDWARD RUSSELL, THE FRENCH CORSAIRS 12 (1970) (noting English practice). 151. RALPH M. EASTMAN, SOME FAMOUS PRIVATEERS OF NEW ENGLAND 1 (1928). 152. Germany, France, Spain, and England forbade private citizens to cruise against the
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Golden Age, privateers played a key role, protecting merchant trade because the government granted them a portion of the captured property, as well as indemnity.153 As powerful state navies, such as the Spanish Navy and the global British Navy, emerged, the need for privateers to conduct warfare diminished, but the practice continued, notably in the Western Hemisphere and during wartime.154 B. Early American Understanding of Letters of Marque Privateering was not restricted to Europe, and the practice was particularly pronounced in the colonies. In America, letters of marque date back to the first settlements. Early on, Queen Elizabeth employed privateers against the Spanish.155 But when James I ascended to the throne, he reversed Elizabeths policies and refused to issue letters of marque.156 Tens of thousands of out-ofwork English privateers soon moved their operations to the Caribbean, finding that a loophole in Jamess policies permitted privateering for colonization and the establishment of plantations.157 These colonial privateers were poorly supervised and lacked discipline; many essentially became pirates.158 At the same time, colonial privateers were the de facto navy, intelligence
enemy without a letter of marque. UPTON, supra note 146, at 101, 110 (stating a ship furnished with a letter of marque is manifestly a ship of war). 153. Id. at 177. Grotius seminal work, DE JURE PRAEDAE (OF THE LAW OF PRIZE AND BOOTY), is often considered the foundation for modern international law, but was essentially a defense of Dutch privateers using letters of marque to raid Spanish shipping. See generally GROTIUS, DE JURE PRAEDAE COMMENTARIUS (COMMENTARY ON PRIZE AND BOOTY) (1608), reprinted in THE FREEDOM OF THE SEAS OR THE RIGHT WHICH BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIAN TRADE vi (James Brown Scott ed., Ralph Van Deman Magoffin trans., 1916). See also VIRGINIA WEST LUNSFORD, PIRACY AND PRIVATEERING IN THE GOLDEN AGE OF THE NETHERLANDS 1213 (2005). 154. The Royal Navys ascendance after Trafalgar reduced the need and profitability of privateers. Cooperstein, supra note 150, at 224. 155. Many view Queen Elizabeths commission of Sir Francis Drake as a privateer in 1572 to mark the beginning of the end of the Spanish Empire. Drake attacked numerous Spanish ports and shipping in the Americas. Id.; see also STARK, supra note 149, at 28283; HARRY KELSEY, SIR FRANCIS DRAKE: THE QUEENS PIRATE (1998). 156. C.M. SENIOR, A NATION OF PIRATES: ENGLISH PIRACY IN ITS HEYDAY 150 (1976). 157. AMANDA J. SNYDER, THE POLITICS OF PIRACY: PIRATES, PRIVATEERS, AND GOVERNMENT OF ELIZABETH I, 15581588, at 9091 n.300, 301 (2006) (quoting M. Oppenheim). 158. The English governor of Jamaica issued Sir Henry Morgan, the fabled Captain Morgan, a colonizing letter of marque. Over his career Morgan looted hundreds of thousands of pounds of Spanish treasure, killed thousands of troops, and held countless Caribbean towns hostage. Richard, supra note 2, at 426. Edward Teach, also known as Blackbeard, began his career as a British privateer, but when the War of Spanish Secession ended he turned to piracy. He blockaded Charleston Harbor and kidnapped residents of the city. He accepted a royal pardon in exchange for part of his treasure and a promise not to plunder (but he was later killed for breaking this promise). See SAMUEL NELSON DICKERSON, THE PIRATES OWN BOOK 31120 (1855); see also CHARLES JOHNSON, A GENERAL HISTORY OF THE PIRATES 18 (1724) (recounting a letter from British Governor, Nicolas Laws, to the Spanish governor of Cuba accusing him of supporting pirates masquerading as privateers using pretend letters of marque commissions).
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service, and infantry of British enterprises in the Americas.159 During the French and Indian War, colonial American privateers attacked French and Austrian shipping on behalf of the British.160 Royal governors were appointed as vice-admirals, giving them authority to issue letters of marque to suitable persons under adequate safeguards, and to appoint admiralty judges to hear prize cases.161 This system of governance went on relatively independently, as oversight came from appeals to the High Admiralty Court in London, which was an ocean away.162 Even when appeals were made to London, colonial supreme courts occasionally issued final binding decisions before the High Admiralty Court had ruled.163 C. Letters of Marque Under the Articles of Confederation Letters of marque also played a key role during the Revolutionary War. When the American colonies rebelled, the British encouraged privateers to seize colonial ships and cargoes. In response, the Continental Congress issued an embargo of British goods and authorized its own privateers to cruise against and seize all such ships of war, frigates, sloops, cutters, and armed vessels as are or shall be employed in the present cruel and unjust war against the United Colonies.164 Authorization encompassed all vessels to whomsoever belonging that provided supplies to the British.165 The Continental Congress incentivized privateers by allowing them to keep half the value of British prizes.166 In 1776, Congress stated letters of marque were necessary to provide for [the colonies] defense and security, and justifiable to make reprisals upon their enemies, and otherwise to annoy them, according to the laws and usages of Nations.167 The importance of privateers during the Revolutionary War cannot be overstated. First, the privateers significantly disrupted British trade.168 Their
159. Cooperstein, supra note 150, at 427. 160. Goods of neutral nations were subject to attack if carried by belligerent-flagged ships. In 1758, the British announced that any merchants carrying cargoes to enemy colonies were subject to seizure. STARK, supra note 149, at 294. 161. John Franklin Jameson, Introduction to PRIVATEERING AND PIRACY IN THE COLONIAL PERIOD: ILLUSTRATIVE DOCUMENTS 78 (John Jameson ed., 1923) available at http://www.munseys.com/diskfive/privol.pdf. The privateers were to bring their prizes and cargo to England or a British colony for proper adjudication, so the Crown got its share. STARK, supra note 149, at 347 (HM George IIs instructions). Rhode Island issued the first colonial letter of marque in 1694. Id. at 288. See also Cooperstein, supra 150, at 224. 162. Cooperstein, supra note 150, at 22425. 163. Id. at 225, n.17 (referring to Taxier v. Sweet, 2 U.S. (2 Dall.) 81 (1766) in which the Pennsylvania Supreme Court ruled it had jurisdiction in common law to hear matters the Lords Commissioners had determined to be Admiralty). 164. Id. 165. 3 J. CONT. CONG. 373 (Nov. 25, 1775). 166. Id. at 375. 167. 4 J. CONT. CONG. 230 (Mar. 23, 1776). 168. See ANDREW JACKSON OSHAUGHNESSY, AN EMPIRE DIVIDED: THE AMERICAN
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attacks disrupted the plantation economy of the Caribbean colonies and made cross-Atlantic transit so risky it was no longer profitable.169 By February 1777 all four of the major British West India merchant companies had collapsed.170 Second, privateersmen assisted the Continental Congress in conducting diplomacy with the neutral French colonies of the Caribbean.171 Third, the privateers provided supplies to the Continental Army.172 Fourth, the privateers engaged the British directly. The first battle fought by an American ship in foreign waters was by the privateer, Reprisal, against H.M.S. Shark.173 In South America, they cut loose the mooring lines on British ships, while Britain invaded Nassau in the Bahamas and attempted to take Tobago twice.174 The privateers also aided the fledgling American Navy, working in tandem to attack the British on several occasions.175 Colonists were also mindful of the risks posed by the profit motive. At times privateers focused more on protecting their assets than achieving military objectives; nonetheless, they contributed in a significant way to military success.176 Privateers functioned as a force multiplier, reducing British capacity at little cost to the Continental Congress. During much of the Revolutionary War, the number of commissioned privateers equaled the number of soldiers in George Washingtons armies.177 The Congress issued over 2,000 commissions
REVOLUTION AND THE BRITISH CARIBBEAN 158 (2000); see generally Matthew Price, Our Privateer History: Patriot Pirates, N.Y. SUN, May 30, 2008, http://www.nysun.com/arts/ourprivateer-history-patriot-pirates/78922 (noting William Bingham raided Caribbean arms shipments and transferred them to the Continental army). 169. JACKSON OSHAUGHNESSY, supra note 168, at 158. 170. Id. 171. Id. at 155. 172. Id. at 156. 173. Id. 174. Id. 175. See JAMES L. NELSON, GEORGE WASHINGTONS SECRET NAVY 29293 (2008). 176. Historians have often faulted privateers for the failure of the Continental attack on the British naval base at Penobscot River. Privateers refused to engage the fort directly and abandoned the Continental Navy when the British fleet arrived. C. Kevin Marshall, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. CHI. L. REV. 953, 970 (1997). However, military strategists, including General Washington, recognized the strategic and economic advantage rascally privateersmen provided. JOHN C. FITZPATRICK, WRITINGS OF WASHINGTON 128 (1931) (letter to Major General Philip Schuyler at Camp at Cambridge, MA, Nov. 28, 1775), available at http://etext.virginia.edu/etcbin/toccer-new2?id=WasFi04.xml&images=images/modeng&data=/ texts/english/modeng/parsed&tag=public&part=113&division=div1. See also NELSON, supra note 175, at 79 (quoting Gen. Washington: Finding we had no great prospect of coming to close Quarters with the Ministerial Troops in Boston, I fitted out at the Continental Expence [sic], several Privateers.). Washington, convinced that privateers were the only way to acquire the provisions necessary to win the Revolutionary war, commissioned the Lee. The Lee seized British merchant ships including the Nancy, which held 2,000 muskets, 2,000 bayonets, 3,000 rounds of shot for 12-pounders, some gunpowder and 50 fire shells. The Nancys capture provided much needed provisions for the colonies. See Shipping: Fortunes at Sea, TIME, Jul. 4, 1976, http://www.time.com/time/magazine/article/0,9171,712256-2,00.html. 177. See MICHAEL AYE, HMS SEAWOLF 12 (2008) (noting approximately 11,000
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to more than 440 privateer ships, which captured 2,000 enemy vessels and 16,000 enemy combatantsmore than the entire Continental Army.178 British General William Howe lamented that American privateers will hurt us more effectually than any thing [the Army] can do by Land.179 Additionally, the success of the privateers compensated for British seizures of American military supplies while subsidizing a significant portion of the economy.180 Americans could buy goods taken from captured British ships at low prices. Cruising for prizes was an honorable calling that combined patriotism and profit.181 The Continental Congress carefully oversaw the activities of these privateers by detailing provisions for the capture of enemy goods transported by neutral shipping, the recapture of American property previously seized by the British, and the percentages of the prize money to be spent to develop a navy.182 Courts held privateers accountable for their actions. In addition to a substantial security bond, privateers could be liable for misfeasance, illegal actions, or attacks on neutral ships or cargo.183 They held the master or commander responsible for mischief if he violated the restrictions of his license.184 Violations might not only lead to forfeiting the bond but also to liability for damages.185 The Articles of Confederation regulated the use of letters of marque. Article VI of the Article of Confederation mandated that no State shall issue letters of marque, except: after a declaration of war by [Congress] . . . against a Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by [Congress], unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the [U.S] in Congress assembled shall determine otherwise.186 Article IX states that Congress: shall have the sole and exclusive right and power . . . of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriatedof
privateersmen took to the seas, while 11,000 soldiers served in the Continental Army). 178. EDGAR STANTON MACLAY, A HISTORY OF AMERICAN PRIVATEERS 1214 (1899). 179. NELSON, supra note 175, at 248. 180. Cooperstein, supra note 150, at 228. 181. UPTON, supra note 146, at 17076. 182. 21 J. CONT. CONG. 115358 (Nov. 28, 1781). 183. Richard, supra note 2, at 453. See also 4 J. CONT. CONG. 247 (Apr. 2, 1776); Talbot v. Commanders and Owners of Three Brigs, 1 U.S. (1 Dall.) 95 (1784) (holding that recapturing a British vessel that had been lawfully captured under a letter of marque amounted to theft). 184. See Purviance v. Angus, 1 U.S. (1 Dall.) 180 (1786). 185. Marshall, supra note 176, at 962. 186. ARTICLES OF CONFEDERATION of 1781, art. VI.
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granting letters of marque and reprisal in times of peaceappointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining final appeals in all cases of captures.187 The Congress also required nine states to approve of the issuance of letters of marque during peacetime.188 Also, tellingly, the only national judicial body the Continental Congress created was an admiralty appeals court intended to hear prize cases related to privateer compensation.189 The founding generation considered privateers useful and incorporated letters of marque into American jurisprudence. D. Letters of Marque and the Constitutions Framework Given the popularity of privateering during the Revolutionary War and the incorporation of letters of marque in the Articles of Confederation, it is not surprising that the Framers uniformly supported the practice. A number of delegates had personally profited from privateering and many viewed the practice as the only viable way to exert American influence at sea.190 Letters of marque provided nations with the flexibility to redress grievances and to take hostile action without resorting to war.191 While the Framers carefully discussed letters of marque, their debates focused on which branch of government should wield issuance power, not whether such power existed.192 Under the Continental system the President of the Congress had the power to issue letters of marque, but the Framers purposely transferred this power to the legislative branch.193 Consistent with the founding generations confidence in local militiamen and fear of standing armies, the Framers included letters of marque in the Constitution to allow the citizenry to assist in military operations.194
187. ARTICLES OF CONFEDERATION of 1781, art. IX. 188. Id. 189. 20 J. CONT. CONG. 761 (Jul. 18, 1781). 190. Cooperstein, supra note 150, at 230 (most notably Robert Morris, Nathaniel Gorham, and John Langdon); see also FORREST MCDONALD, WE THE PEOPLE 38, 43 (1968) (providing detailed accounts of Gorham and Langdons pecuniary interest in privateering). 191. JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES: CONTAINING A BRIEF COMMENTARY ON EVERY CLAUSE, EXPLAINING THE TRUE NATURE, REASONS, AND OBJECTS THEREOF 121 (Harper & Brothers ed. 1869) (1840). 192. The Framers were concerned that a new centralized government might lead to military despotism. Matthew J. Gaul, Regulating the New Privateers, 31 LOY. L.A. L. REV. 1489, 1506. However, they were keenly aware that a strong executive would be needed during times of war. See John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167, 24350 (1996). 193. U.S. CONST. art. I, 8, cl. 7. As with war declarations, Congress was seen as the appropriate branch to determine whether military operations should be conducted using privateers. U.S. CONST. art. I, 8, cl. 11 (Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water). 194. See Alexander Tabarrok, The Rise, Fall, and Rise Again of Privateers, 11 INDEP. REV.
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Despite the benefits letters of marque provided, they were not without problems. In some cases, the practice devolved from legitimate strikes on belligerent merchants to attacks on neutral shipping. Even powerful maritime nations were often unable or unwilling to prevent privateers from violating their commissions by attacking nonbelligerent merchants.195 Not surprisingly, many nations came to view such piracy as an odious outgrowth of privateering and responded by blocking privateers from their ports.196 International relations were strained when privateers went unpunished for violations, such as attacks on neutral shipping.197 Although governments that issued letters of marque were supposed to police their privateers, supervision was rare due to distance, difficulty acquiring evidence, and government indifference. During the QuasiWar, the United States became keenly aware of the risks of an improper letters of marque regime, as French privateers seized officially neutral American merchants and France adjudicated the seizures in sham tribunals without due process.198 Congress responded by authorizing private American vessels to act against the French.199 The United States also concluded several treaties that stated that if the subjects of either party [violate international law], they shall be considered and punished as pirates.200 The Founders were aware of other risks. Benjamin Franklin observed: the mass of adventurers are losersthe whole expense of fitting out all privateers during a war being much greater than
565, 576 (2007). 195. STARK, supra note 149, at 86, 306. 196. Id. at 139, 356. 197. Attacks on neutral shipping frequently went unpunished. Id. at 13239 (noting that the burning of potential neutral vessels without trial usually produces ill-feeling and diplomatic difficulties . . . which aroused in habitually neutral states an unconquerable aversion to privateers.). 198. CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 189, 239 (James Brown Scott ed., 1915) (illustrating the U.S. willingness to support the creation of standard rules to protect neutral shipping during wartime (Convention XIII) and an International Prize Court (Convention XII) and designed to settle in an equitable manner the difference which sometimes arise in the course of a naval war in connection with the decisions of national prize courts.). American diplomat Pickering noted in 1797 that the merchants in the ports of France who constitute the tribunal of commerce in which our captured vessels are tried and, on the most frivolous and shameful pretenses, condemned, are often, if not commonly, owners of the privateers on whose prizes they decide. See id. at 250 (discussing French privateersmen confiscating an entire ship for having an improper role dequipage, when by treaty the ship was not required to carry one). See also Gray v. United States (Grays Case), 21 Ct. Cl. 340 (1886); Holbrook v. United States, 21 Ct. Cl. 434 (1886); Cushing v. United States, 22 Ct. Cl. 1 (1886) (French spoliation cases). 199. See GREG H. WILLIAMS, THE FRENCH ASSAULT ON AMERICAN SHIPPING 17931813, at 2526 (2009). The Acts of May 27, June 25, and July 11, 1798 gave to private armed vessels the same rights to seize and capture that U.S. public armed vessels had. This statute therefore authorized private armed vessels to recapture American vessels and to take any armed French vessel found within the jurisdictional limits of the United States or elsewhere on the high seas. 200. The United States signed treaties with France (1778), the Netherlands (1782), Sweden (1783), Prussia (1785), Great Britain (1795), Spain (1795), and Colombia (1824). UPTON, supra note 146, at 185.
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the whole amount of goods taken, and even when they do take valid prizes, they spend what they get in riot, drunkardness and debauchery, [losing] their habits of industry . . . serving only to increase the number of housebreakers.201 But despite these negative experiences, Americans generally viewed privateers positively for their vital role in bolstering naval operations during national crises, such as its early naval challengethe Barbary Pirates. Initially, America paid annual tribute to these pirates in exchange for safe passage for its vessels.202 Congresss subsequent refusal to pay tribute led to two Barbary Wars, attacks on American ships, and the enslavement of American crews. Congress authorized the issuance of letters of marque to privateers, permitting them to attack not only pirates at sea, but also their financial backers on land, namely the Pasha of Tripoli, the Dey of Algiers, and the Dey of Tunis.203 Historian Thomas Bailey suggests the Framers took potential conflicts with the Barbary pirates into account when calling for a stronger central government, particularly on issues of national security.204 They sought to create a national government that would be capable of addressing national security threats using all available tools, including the issuance of letters of marque, rather than a piecemeal approach. Because the Constitutions language incorporated letters of marque, the United States was able to respond flexibly to the national security threat posed by the Barbary pirates.205 The nations early presidents differed sharply on how to respond to the Barbary pirates. George Washington begrudgingly accepted the status quo,206 John Adams favored paying off the pirates,207 and Thomas Jefferson earnestly believed paying tributes sullied Americas honor.208 Jefferson thought a decisive war might be better than perpetual payments; as president, he
201. UPTON, supra note 146, at 184 (quoting Benjamin Franklin at the 1783 signing of the Court of St. James Peace marking the end of the American Revolutionary War). 202. In 1795, 115 sailors were ransomed for one million dollars and annual tribute payments. Id. at 20. When Jefferson took the presidency, Tripoli was asking for an immediate payment of $225,000 and an annual payment of $25,000. Gerard W. Gawalt, America and the Barbary Pirates: An International Battle Against an Unconventional Foe, LIBRARY OF CONG., http://memory.loc.gov/ammem/collections/jefferson_papers/mtjprece.html (last visited Apr. 3, 2011). 203. EASTMAN, supra note 151, at 45 (reproducing a letter of marque signed by President James Madison directing the privateer, Grand Turk, to seize Algerine vessels, public or private, goods and effects, of or belonging to the Dey of Algiers). 204. THOMAS A. BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN PEOPLE 65 (1955) (stating that the brutal Dey of Algiers was a Founding Father of the Constitution, because his actions enraged the masses, who demanded action be taken against the pirates). 205. U.S. CONST. art 1, 8. 206. Nathan Williams, How Did the United States Defeat the Barbary Pirates?, HISTORY NEWS NETWORK, Sept. 26, 2001, http://hnn.us/articles/287.html; see also NELSON, supra note 175 n.179 (explaining Washingtons initial concerns about privateers before being convinced of their strategic benefits). 207. Adams made all tribute payments and even built and delivered two warships to the Algerian Corsairs. Williams, supra note 206. 208. Id.
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blockaded pirate harbors and bombarded the palaces of pirate financiers. Under Jefferson, privateer merchant vessels transported marines to battle pirates at Tripoli, in what Admiral Horatio Nelson described as the most bold and daring act of the age.209 During their presidencies, Jefferson and James Madison controlled privateer conduct by holding them to the strict regulations contained in their letters of marque.210 Early in the nations history, privateers contributed to Americas victories, first in the Quasi-Wars against France and again during the War of 1812 against the British. Realizing the vulnerability of the American fleet made up of small revenue cutters and less than a dozen naval vessels, Congress authorized private merchantmen to arm themselves and capture French vessels at the outset of the Quasi-War.211 In the course of the war, the United States commissioned 365 private vessels.212 These ships battled French vessels on several occasions and achieved some significant victories.213 Similarly, during the War of 1812, Americas economy depended on seagoing trade, but the U.S. Navy had only 16 vessels compared to the British Royal Navys 1,048.214 Privateers were the only economically viable way to provide meaningful resistance. E. Development of Letters of Marque in the American Legal System During the War of 1812, Congress passed comprehensive laws defining the rights of privateers and providing guidance for their endeavors. These acts: (1) gave the president the power to revoke letters of marque and reprisal; (2) required privateers to describe their ownership and operation; and (3) provided strict procedures to ensure privateers conformed to international and domestic laws.215 This laid the groundwork for the deployment of privateers to disrupt British supply lines far from home.216 By the end of the War of 1812, American
209. DAVID STEPHEN HEIDLER & JEANNE T. HEIDLER, ENCYCLOPEDIA OF THE WAR OF 1812, at 149 (2004) (quoting British Admiral Lord Horatio Nelson on the February 1804 attack on Tripoli). 210. UPTON, supra note 146, at 180 (privateers that violated their letters of marque were tried as pirates); see, e.g., EASTMAN, supra note 151, at 45 (reproducing the letter of marque James Madison issued to the ship Grand Turk). 211. The Quasi-War, an undeclared war between the United States and France fought from 17981800, was the result of disagreements over treaties and Americas status as a neutral in the Wars of the French Revolution. Fought entirely at sea, it was largely a success for the United States, whose vessels captured numerous French privateers and warships. At the outset, Congress granted the President the power to do everything necessary to win, which tacitly included issuing letters of marque. Sidak, supra note 142, at 481; Act of June 25, 1798, ch. 60, 1 Stat. 572. 212. GARDNER WELD ALLEN, OUR NAVAL WAR WITH FRANCE 59 (1909). 213. Id. at 22633 (chronicling the battles of the Eliza, Charming Betsey, Mount Vernon, and Planter as well as the Genius capture of the French ship Columbus). 214. See MIRIAM GREENBLATT, WAR OF 1812 82 (1941). 215. UPTON, supra note 146, at 181. 216. In 1813, the Grand Turk alone took over ten large British vessels from off Brazil to the English Channel. STANTON MACLAY, supra note 178, at 392. For a detailed account of the privateer activities and adjudication of their prizes, see GEORGE COGGESHALL, HISTORY OF THE
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privateers had proved instrumental in defeating the British and had made a twenty-eight million dollar profit.217 After the war, the United States continued to issue letters of marque. In 1834, President Andrew Jackson used letters of marque to help address Frances continued failure to protect American rights in French courts.218 Later, when Texas rebelled against Mexico in 1835, the First Revolutionary Assembly of Texas immediately issued letters of marque to harass Mexican shipping.219 Later, during the Mexican-American War, American leaders noted that letters of marque were generally legal, but forcefully distinguished between valid letters and illegal licenses. When Mexico issued blank letters of marque, President Polk protested, calling them an unlawful invitation to all freebooters to cruise against American commerce, noting our courts of justice [shall] decide whether . . . these Mexican letters of marque and reprisal shall protect those who accept them . . . from the penalties of piracy.220 Polks message was clear: it would treat Mexican letters of marque as valid only if they were properly offered to individuals who were properly commissioned and thus subject to Mexican control.221 At the same time, the United States prosecuted Americans who illegally cruised for other nations.222 Legal observers at the time considered reprisals a species of hostility, an imperfect war allowing nations to secure indemnity without direct conflict.223 F. The Paris Declaration In 1856, at the close of the Crimean War, the worlds maritime powers signed a treaty banning the use of letters of marque amongst themselves. The most-accepted European account explains that prior to the Crimean War, France and the United Kingdom signed a modus vivendi to refrain from issuing letters of marque because neither side felt they could effectively control privateers.224 As the story goes, after the war, politicians and merchants on both sides appreciated that the agreement had limited damage to civilian property.225
AMERICAN PRIVATEERS, AND LETTERS OF MARQUE DURING OUR WAR WITH ENGLAND IN THE YEARS 1812 13, 14, 21941 (1861). 217. Id. $323 million in 2009 inflation adjusted dollars. Inflation adjusted using the Inflation Calculator at http://www.westegg.com/inflation/infl.cgi. 218. UPTON, supra note 146, at 175. 219. Eugene C. Barker, The Finances of the Texas Revolution, 19 POL. SCI. Q. 612, 620 (1904). 220. UPTON, supra note 146, at 182 (quoting President Polk). 221. President James Polk, State of the Union Address (Dec. 8, 1846), http://www.infoplease.com/t/hist/state-of-the-union/58.html. 222. The Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822) (holding that U.S. citizens could not take commission from a foreign power [in this case the United Provinces of Rio de La Plata] to cruise against Spanish ships). 223. UPTON, supra note 146, at 175. 224. Cooperstein, supra note 150, at 245. 225. SIR TRAVERS TWISS, BELLIGERENT RIGHT ON THE HIGH SEAS SINCE THE
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Britain, France, and other powers met in Paris to establish a prohibition on letters of marque during war and peace, which became known as the Paris Declaration.226 Cynicsand Americansbelieve that the Paris Declaration was a British and French ploy to prevent [t]he Maritime population of the U.S. [from furnishing] to Russia the elements of a fleet of privateers, which attached to its service by Letters of Marque and covering the seas with a network would harass and pursue [their] commerce even in the most remote waters.227 The Paris Declaration bound signatories not to seize enemy goods on neutral vessels, or neutral goods on enemy vessels.228 It explicitly and emphatically stated it would be binding only amongst signatories.229 Nonsignatories were not included. The declaration was not intended as a universal ban (as it was not relevant to situations where signatories were at war with nonsignatories), nor did it purport to regulate behavior of nonsignatories. Most maritime powers signed or acceded to the Declaration, except for the United States, Spain, Bolivia, Uruguay, New Granada, and Mexico.230 Important in the piracy context, the signatories did not reference the use of privateers against pirates, despite their familiarity with pirates and knowledge that privateers were used against such pirates.231 This suggests the Declarations ban was never meant to limit any nations use of privateers to suppress piracy. The United States abstained from the Declaration on two grounds. First, the Americans sought a guarantee against the capture of all noncontraband private property at sea (so that it could safely trade with both sides of a European conflict).232 Second, the nation could not forego the right to send out
DECLARATION OF PARIS (1856) 7 (1884) (quoting a French official, ([t]he system inaugurated by the war of 1854 responded so well . . . that it took . . . the character . . . of International Law). 226. Ratifiers included the United Kingdom, Austria-Hungary, France, Prussia, Russia, Sardinia, and the Ottoman Empire. See 1856 Paris Declaration Respecting Maritime Law, in NATALINO RONZITTI, THE LAW OF NAVAL WARFARE: A COLLECTION OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES 61 (1988). 227. TWISS, supra note 225, at 10 (citing the memoir of M. Drouyn de Lhuys, the French Foreign Minister, as saying: What influenced especially the English Government was the fear of America inclining against us, and lending to our enemies the co-operation of her handy volunteers [privateers].). Id. 228. See 1856 Paris Declaration, supra note 226, at 6465 (noting that except for contraband the neutral flag covers enemys goods and neutral goods . . . are not liable to capture under the enemys flag.). 229. Id. at 65. 230. Id. at 6162 (the initial signatories were Britain, France, Russia, Prussia, Austria, Sardinia, and the Ottoman Empire). 231. The British government had hired privateers to chase pirates in 1715; the colonial governor of South Carolina commissioned privateers to hunt pirates in 1718; and Britain passed statutes enabling private entities to capture pirates. Richard, supra note 2, at 43336. See also Farley M. Foster, Woodes Rogers Privateer and Pirate Hunter, 29 HIST. TODAY 522, 53031 (1979). 232. TWISS, supra note 225, at 3. The United States hoped the other nations would accept the Marcy amendment, but when the United Kingdom rejected its exemption of noncontraband
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privateers, which in the past had proved her most effective maritime weapon in time of war.233 Abolishing privateers would have enabled European navies to dominate the small American fleet.234 After the signing of the Paris Declaration, Congress reaffirmed the U.S. right to commission privateers by authorizing the President to issue letters of marque.235 G. Post-Paris Declaration Use of Letters of Marque Since the Paris Declaration, the United States has played an important role in the ongoing development of customary international law associated with letters of marque. During the American Civil War, the Union government declared that it would abide by the principles of the Paris Declaration during hostilities; the South did not and sought to hire British and French privateers.236 Because the Paris Declaration prevented nationals from one signatory cruising against another signatory, the Union requested that Britain and France allow it to accede to the Declaration, which would have prevented British and French privateers from cruising against it. But Great Britain and France declined, thus enabling British controlled ships to function as Confederate privateers against the Union.237 In this instance, two major signatories tacitly acknowledged that the United States and the Confederacy were not included in or bound by the Declaration.238 It also suggests that neither Britain nor France considered the
property, the Convention went into force without the adherence of the United States. See STARK, supra note 149, at 15152, 371. 233. EPHRAIM DOUGLASS ADAMS, GREAT BRITAIN AND THE AMERICAN CIVIL WAR 91 (1925). 234. Id. Secretary of State Marcy explained the United States could not forego the right to send out privateers, which in the past had proved her most effective maritime weapon in time of war. Id. 235. Schwartz, supra note 2, at 511 (citing An Act Concerning Letters of Marque Prizes, and Prize Goods, ch. 85, 12 Stat. 758 (1863)). 236. The Confederate Congress passed an act recognizing the existence of war between the United States and the Confederate States, and concerning letters of marque, prizes, and prize goods on May 6, 1861. Confederate Cong., An Act Recognizing the existence of war between the United States and Confederate States, and concerning the letters of marque, prizes, and prize goods (1st Sess. April 29, 1861), available at http://www.civilwarhome.com/lettersofmarque.htm. In doing so, they gave the Confederate President the power to commission privateers under prescribed conditions including the posting of a bond, promise to obey laws, and requirement to adjudicate prizes in district court. Jefferson Davis issued letters of marque under the Confederate Seal. JAMES D. RICHARDSON, COMPILATION OF MESSAGES AND PAPERS OF THE CONFEDERACY 6062 (1906). 237. STARK, supra note 149, at 15556, 37576; see also Privateers, GLOBALSECURITY.ORG (Jul. 17, 2006, 20:02:13), http://www.globalsecurity.org/military/agency/ navy/privateer.htm. 238. STARK, supra note 149, at 375 (noting [h]ad the United States acceded to the Declaration of Paris . . . the Southern States then certainly part of the Union, would have been bound by it, and [the United States later] might justly have invoked the assistance of foreign nations to prevent its violation). Thus, by supporting the Souths privateering operations, Britain and France tacitly implied that the United States was not a party to the Declaration and that nonsignatories were not bound by it.
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Paris Declaration to have created a customary international law obligation against the use of letters of marque. For its part, the Union did not explicitly issue letters of marque, but it engaged in similar tactics, paying commercial merchants to maintain a blockade against the Confederate ports and issuing prize money to Union naval officers for taking Confederate merchants.239 After the war, the United States sought damages against Great Britain for providing various forms of assistance, including privateers, to the Confederates in violation of international law. An international tribunal ruled that Great Britain, as a neutral state, should not have participated in the conflict; but it made no finding that letters of marque were outlawed as a matter of international law or that British privateers assistance to the South was per se illegal.240 The Tribunal essentially allowed a nonsignatory, the Confederates, to issue letters of marque and allowed a signatory, the United Kingdom, to construct, furnish, and crew ships to be used in commerce raids against a nonsignatory, the United States.241 This decision illustrated the contours of the international letters of marque regime: letters of marque were generally allowed in war, but officially neutral states could not participate in the conflict by sending privateers. Letters of marque continued in Europe as well. During the FrancoGerman War from 18701871, Prussia (a Paris Declaration signatory) invited commercial vessels to attack French ships of war, offered bounties, allowed them to fly the federal flag (rather than the merchant flag), and trained merchant mariners crews under naval discipline.242 These privately armed and commanded civil merchants made up what Prussia called a volunteer navy.243 The French government protested the use of a volunteer navy, believing it violated the Paris Declarations prohibition on employing privateers.244 The Law Offices of the British Crown, as a neutral arbiter, concluded that there was
239. See Cooperstein, supra note 150, at 248. 240. The Tribunal merely found that Britain was barred from participation by its declaration of neutrality. Presumptively, Britains involvement (essentially operating privateer vessels on behalf of the Confederacy) would have been tolerated under international law but for its declaration of neutrality. Commentators note when anyone talks now of British friendship I cannot help thinking of the [cruiser Florida], built in England, built with English capital, armed with English guns, manned with English men to prey upon the commerce of a friendly nation [the United States]. THOMAS WILLING BALCH, THE ALABAMA ARBITRATION 10 (2009) (citing GROSVENOR P. LOWREY, ENGLISH NEUTRALITY: IS THE ALABAMA A BRITISH PIRATE? (1863)). 241. JOHN LALOR, CYCLOPEDIA OF POLITICAL SCIENCE, POLITICAL ECONOMY, AND THE POLITICAL HISTORY OF THE UNITED STATES 500 (quoting The Alabama Arbitration Tribunal, Geneva (1872) holding [t]he effects of a violation of neutrality, committed by means of the construction, equipment and armament of a vessel, are not done away with by any commission which the government of the belligerent power benefited by the violation of neutrality may afterward have granted to that vessel). 242. TWISS, supra note 225, at 12 (referring to the Prussian Government Decree on the Constitution of a Volunteer Naval Force, Jul. 24, 1870). 243. Id. 244. Id.
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a substantial difference between a government-sanctioned, privately-owned volunteer force and the system of privateering the Paris Declaration outlawed. The decision focused on the military nature of the volunteer navy and the targeting of warships rather than merchants, as well as the amount of discipline and government control the Prussians exercised.245 At the time, prominent international law scholars believed volunteer navies were legitimate if in close connection with the State,246 or if composed of privateers under sufficient state control.247 This suggests that even signatories of the Paris Declaration did not intend an outright ban on the use of government-sanctioned, private individuals in maritime war; rather they intended a prohibition of undisciplined and unregulated maritime forces operating under the guise of a sovereign. The Spanish-American War provides further support for the idea that letters of marque do not violate customary international law. Prior to the outbreak of the Spanish-American War in 1898, the United States and Spain, both nonsignatories to the Paris Declaration, issued statements proclaiming their intentions to conform to the Declarations provisions prohibiting letters of marque.248 The issuance of these statements suggests customary international law at the time did not prohibit nonsignatories from issuing letters of marque. While at first glance an international law scholar might be tempted to view this agreement among two nonsignatories as opinio juris, which would support the notion of the formation of customary law, such an argument is diminished by the express reservations of the right to issue letters of marque in the future, as well as by the practices of the parties in the conflict. The United States and Spain seemed to believe that, absent specific agreement, states had the right to use privateers. In fact, at the outset of the war Spain expressly reserved the right to issue letters of marque in later conflicts and stated its intent to outfit merchant vessels to function as auxiliary cruisers.249
245. Id. at 13. The French government submitted the issue of the Prussian decrees to the British government. 246. See TWISS supra 225, at 13 (citing M. CHARLES CALVO, ANCIEN MARINE 303 (Le Droit Intl, Troisieme Ed., 1880)). 247. Id. at 1819 (discussing the difference between a volunteer (auxiliary) force and privateers, by contrasting the views of William E. Hall, who believed the Prussian volunteer force should be privateers for lack of a surety bond to maintain control, and Professor Geffcken, who believed that the Prussians commissioning of the ships officers were sufficient to control to constitute a volunteer navy rather than privateer.). 248. President William McKinley, Proclamation on the War with Spain (Apr. 26, 1898), available at http://www.spanamwar.com/McKinleywardec.htm (declaring that war exists . . . between the U.S. and Spain [and] it being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of this Government will be not to resort to privateering, but to adhere to the [Paris Declaration]); Spanish Declaration of War, Apr. 23, 1898, sec. 4, available at http://www.spanamwar.com/declarationwarspain.htm. 249. Spanish Declaration of War, supra note 248, sec. 4 ([Upholding] our right to give letters of marque for Privateers, that was reserved by note of May 16, 1857, when Spanish
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Both the Spanish and the Americans pushed the bounds of their agreement not to issue letters of marque by augmenting their traditional naval forces with merchant ships commanded by naval officers. These officers earned handsome returns through military prize, essentially a letter of marque regime with a quasi-military, quasi-commercial purpose.250 Yet neither country claimed the other had violated international custom. Moreover, even after Spain signed the Paris Declaration in 1901, it continued to advance the idea that issuing letters of marque was permissible under international law.251 The Hague Convention of 1907 is also instructive in understanding the evolution and scope of privateers under international law. The impetus for the Convention, inter alia, was the Russo-Japanese War. During the war, the Russians fought the Japanese and British utilizing a volunteer naval force. These merchant ships captured multiple British vessels, but drew criticism due to their deceptive practice of transforming from commercial to military vessels.252 In response, the 1907 Hague Convention stated that no merchant ship transformed into a war vessel can have the rights and obligations attaching to [military vessels,] unless it is placed under the direct authority, the immediate control and the responsibility of the power whose flag it carries.253 Additionally, transformed merchant ships had to show the external signs of their countrys war vessels, commanding officers had to be in the service of the state and be properly commissioned, the list of officers of the combatant fleet had to include each officers name, and the crew had to be subject to the rules of military discipline.254 These provisions refer to military functions rather than
Government answered to French Government about the Spanish attachment to the Maritime Laws agreement of Paris, Spanish Government shall fit out, with Spanish Merchant Ships, a service of Auxiliary Cruisers that co-operate with the navy during the war and under its command.). 250. ARTHUR D. HALL, UNCLE SAMS SHIPS: BEING A HISTORY OF THE AMERICAN NAVY 167 (1899) (explaining the division of prize spoils among admirals, commanding officers, officers, and crew during the Spanish American War, especially noting that some, like Admiral Farragut, earned $140,000 [$3.5 million inflation adjusted to 2009] in prize money). 251. Spain issued letters of marque and maintained its right to do so even after signing the Paris Declaration. See Jacob W.F. Sundberg, Piracy: Air and Sea, 20 DEPAUL L. REV. 337, 353 (1971). 252. Privateers, supra note 237. 253. Hague Convention art. VII, Oct. 18, 1907, available at http://avalon.law.yale.edu/ 20th_century/hague07.asp. 254. Id.; see also Privateers, supra note 237 (interpreting the 1907 Hague Convention to mean no merchant ship transformed into a war vessel can have the rights and obligations attaching to this condition unless it is placed under the direct authority, the immediate control and the responsibility of the power whose flag it carries. Merchant ships transformed into war vessels must bear the distinctive external signs of war vessels of their nationality. The officer commanding must be in the service of the state, and properly commissioned by the competent authorities. His name must appear in the list of officers of the combatant fleet. The crew must be subject to the rules of military discipline. Every merchant ship transformed into a war vessel is bound to conform, in its operation, to the laws and customs of war. And the belligerent who transforms a merchant ship into a war vessel must, as soon as possible, mention this transformation on the list of vessels belonging to its combatant fleet.).
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ownership or method of payment. Consistent with prior understandings from the Franco-Prussian War, the Hague Convention allowed private vessels to serve military functions and receive the rights of a military vesselnamely, the ability to attack enemy shipsso long as they were distinguished by external markings and fell under the supervision of a state. Further, the United States noted in its accession to the Hague Convention that it refused to renounce privateers.255 In World War I and World War II, Germany (a nonsignatory) employed commerce raiders against British shipping.256 The British and Americans responded by employing civilian-controlled merchant ships for military purposes, such as decoys.257 After the attack on Pearl Harbor, the private Goodyear airship Resolute was tacitly confer[red] Privateer status enabling it to conduct antisubmarine missions as a private vessel.258 Realizing the need for
255. See Joseph H. Choate & Chandler Hale, Report of the Delegates of the United States to the Second International Peace Conference Held at The Hague from June 15 to October 18, 1907 (June 15Oct. 8, 1907), in II PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1144, 116061 (1910) (the United States would give up its right only if all participants agreed to the inviolability of private property at sea during war and peace). 256. These efforts distracted the British navy, giving the Germans an early advantage in World War I. JERRY W. JONES, U.S. BATTLESHIP OPERATIONS IN WORLD WAR I 89 (1998). In World War II, the Germans wreaked havoc on British trade, which diverted numerous Royal navy assets. JAMES P. DUFFY, HITLERS SECRET PIRATE FLEET: THE DEADLIEST SHIPS OF WORLD WAR II xi-xii (2001). 257. Allies used Q-ships, merchant vessels equipped with heavy artillery, to lure German submarines. Privateers, supra note 237. 258. There has been much confusion among naval aviation historians and legal scholars regarding whether a letter of marque was issued to the Goodyear airship and whether it acted briefly as a privateer at the beginning of the United States involvement in WWII. Some historians, including Richard Whitney, assume that because the blimp functioned as a privateer the Navy had issued a letter of marque. See Richard V. Whitney, The Goodyear Blimps Go to War, AM. AVIATION HIST. SOCY J. 66 (Spring 2001) (The navy lost no time in issuing a Letter of Marque, conferring Privateer status on this airship [the Resolute] and its crew.). However, the Congressional Record does not reveal any authorization for letters of marque. Richard, supra note 2, at 429 n.121. Rather, it appears [t]he Resolute, operating in Los Angeles, was armed and in service even before completing the legal technicalities of swearing in the crew and commissioning. This made the crew members temporary pirates aboard a privateer but international protocol was not much of a concern. Id. (quoting MAURICE OREILLY, THE GOODYEAR STORY 9293 (James T. Keating ed., 1983). Admiral Charles Rosendahl, Chief of Airship Training and Experimentation, explains: Commander Maurice R. Pierce, one of the Navys airship pioneers was serving in the Inshore Patrol of the Eleventh Naval District (Southern California). Without awaiting formal negotiations [he] and the owners of the blimps got together and the Navy quickly commandeered one of these advertising craft, the RESOLUTE, which was immediately pressed into patrol in the coastal waters of the Long Beach-San Pedro vicinity. As a civil craft, the Resolute had neither armament nor provision for its installation. Charles E. Rosendahl, How Soon We Forget; US Navy Airship Operations in World War Two 5 (unpublished manuscript written between 19461976, available at http://www.nlhs.com/ chapter.htm). Congress did not authorize letters of marque. Some legal scholars believe the lack of a formal commission according to domestic procedures means these vessels were not privateers. See Richard, supra note 2, at 429 n.121. However, international law does not hinge on domestic
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blimps at the outbreak of the war, naval authorities in Southern California pressed the private vessel into military service without awaiting orders from Washington.259 The civilian craft conducted military surveillance operations for several months before it was bought and commissioned by the Navy.260 As a constitutional matter, the commandeering of the dirigible was not valid because, according to the Congressional Record, Congress did not issue an authorizing letter of marque as required in Article I, Section 8 of the Constitution.261 However, the fact that, as recently as the last World War, a major power employed a private vessel under the ownership and control of civilians for military purposes suggests that privateers do not necessarily violate customary international law. After September 11, 2001, Congressman Ron Paul suggested issuing letters of marque against terrorist assets.262 He argued that using private forces to hunt terrorists would be more advantageous and cost-effective than war or regime change.263 His Marque and Reprisal Act of 2001 classified the attacks of 9/11 as air piracy and directed the President to issue letters of marque against Osama Bin Laden.264 Congress did not enact the proposed law.265 Instead, the Bush administration, Congress, and military leaders pursued a counter-terrorism strategy relying on conventional military forces to topple regimes that harbor, support, and use terrorism.266 In 2007, Ron Paul again introduced the Marque and Reprisal Act authorizing and requesting the President to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons and entities as . . . the service may require, . . . to seize outside the geographic boundaries of the [United States] and its territories the person and property of Osama bin Laden.267
procedures, but rather on whether the private vessel was authorized by the government. Here, a commissioned naval officer commandeered the use of privately owned craft for military purposes. Even though the domestic procedures for issuing a letter of marque were not followed, the authorization constituted the employment of a privateer under international law. 259. Rosendahl, supra note 258. 260. Armed with rifles and antisubmarine munitions, these civilian-crewed dirigibles patrolled the eastern Pacific for Japanese submarines from 19411942. See JAMES R. SHOCK & DAVID R. SMITH, THE GOODYEAR AIRSHIPS 43 (2002). 261. Cooperstein, supra note 150, at 492 n.121. 262. Press Release, Ron Paul, Paul Offers President New Tool in War on Terrorism (Oct. 11, 2001), available at http://www.house.gov/paul/press/press2001/pr101101.htm. 263. Placing bounties on the heads of terrorists would cost only a few tens of millions of dollars (compared to hundreds of billions spent on the military in the War on Terror). Id. 264. H.R. 3076, 107th Cong. (2001), available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=2001_record&docid=cr10oc01-93. 265. Josh Bresnahan, Ron Paul Brings Back Whacky Post 9/11 Bill, POLITICO (July 30, 2007), http://www.politico.com/blogs/thecrypt/0707/Ron_Paul_brings_back_a_whacky_post_ 911_bill.html. 266. U.S. NATL SEC. COUNCIL, NATIONAL SECURITY STRATEGY (2002), available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss3.html. 267. H.R. 3216, 110th Cong. (2007), available at http://thomas.loc.gov/home/gpoxmlc110/
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These bills uniquely targeted specific individualsOsama Bin Laden and his co-conspiratorsrather than vessels of a sovereign power. If passed it would have expanded the concept of letters of marque beyond its traditional maritime domain by employing privateers to hunt terrorists on land in a foreign sovereign territory. This would have been a very different context and regime than that of using letters of marque on the high seas.268 Moreover, even if such an option had been legally permissible, it would have been politically untenable at the time.269 Reports of abuse, waste, and fraud by private military contractors in Iraq and Afghanistan caused many policymakers in Washington to distrust them.270 On April 15, 2009, Congressman Paul again advocated issuing letters of marque, this time to Special Ops/Special Forces operators who are ready, able, and willing to have a go at the Somali pirates.271 This proposal was in keeping with the traditional understanding of letters of marque and privateers under international law. But Congress failed to act on this proposal. Politicians assumed naval forces and shipping industry efforts would sufficiently deter the pirates.272 Despite failing to generate political momentum, Representative Pauls proposals illustrate that letters of marque may be politically relevant to at least some policymakers capable of crafting and introducing legislation. Of course, many more supporters will be necessary to shift government policy. The majority of Congress must be convinced that letters of marque are a legal and prudent option in the fight against seagoing pirates. III. THE PRESENT STATE OF LETTERS OF MARQUE IN INTERNATIONAL LAW AND
h3216_ih.xml. 268. The deployment of armed forcesprivate or otherwiseinto a sovereign country, such as Pakistan where Al Qaeda forces were believed to have been hiding, without United Nations Security Council approval or being an act of emergency self-defense would have constituted a violation of Article Two of the United Nations Charter, of which the United States is a signatory. On the high seas, such territorial issues do not come into play. U.N. Charter art. 2, available at http://www.un.org/en/documents/charter/chapter1.shtml. 269. Joseph Goldstein, Makin em Walk the Plank, A.B.A. J., July 1, 2009, http://www.abajournal.com/magazine/article/makin_em_walk_the_plank. 270. Distrust of military contractors and a desire to limit their roles is evident in the House Committee on Oversight and Government Reforms opening investigative hearing remarks. Rep. Henry A. Waxman, Remarks on Reliance on Private Military Contractors in Iraq Reconstruction (Feb. 7, 2007), available at http://democrats.oversight.house.gov/images/stories/documents/ 20070207112222-87567.pdf. 271. William F. Jasper, Piracy Solution: Letters of Marque and Reprisal, NEW AM., Apr. 16, 2009, http://www.thenewamerican.com/index.php/usnews/foreign-policy/1011. 272. S. COMM. ON ARMED SERVS., REPORT ACCOMPANYING THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010, S. REP. NO. 111-35, at 19596 (2009), http://www.gpo.gov/fdsys/pkg/CRPT-111srpt35/pdf/CRPT-111srpt35.pdf (noting that naval forces of the world have a critical role to play in deterring and combating pirates, the problem is more complex and requires a holistic approach combining military efforts with industry efforts, diplomatic outreach, and robust prosecutions).
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Many contemporary international law scholars contend that the Paris Declaration by formal accession or tacit acceptance by all the powers [has become] an established part of the general body of [customary] international law.273 Proponents of a broad prohibition on privateering allege that customary international law has formed since the Paris Declaration. [I]nternational custom, as evidence of a general practice accepted as law is recognized as a source of international law under Article 38 of the International Court of Justice Statute.274 It consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.275 The two key elements are state practice and opinio juris.276 State practice refers to consistent conduct, while opinio juris means States follow the rule out of belief that they are legally obligated to behave in a certain manner.277 Admittedly, the distinction is frustrating because it is difficult to determine what states believe as opposed to what they say.278 But, as expressed in Article 38, the normative force of customary law derives from voluntariness to be bound. Actions can only amount to custom if accompanied by an articulation of the legality of such an action. Following this approach, international courts have inferred customary norms based on instances of state action and acquiescence.279 Recently, in judicial and academic circles, this inductive approach has been replaced by a deductive method that primarily focuses on evidence of opinio juris, such as the States attitude towards international statements.280 In Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice derived custom without considering state practice when both countries expressed willingness to be bound to a norm by consenting to the text of the agreement.281 The Court noted that a norm could be considered customary international law, so long as conduct was generally consistent with state
273. JAMES WILFORD GARNER, PRIZE LAW DURING THE WORLD WAR 143 (1927). 274. Statute of the Permanent Court of International Justice (hereinafter ICJ Statute), art. 38.1(b). 275. SHABTAI ROSENNE, PRACTICE AND METHODS OF INTERNATIONAL LAW 55 (1984). 276. North Sea Continental Shelf (FRG v. Den., FRG v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20). 277. Michelle M. Kundmueller, The Application of Customary International Law in U.S. Courts: Custom, Convention, or Pseudolegislation, 28 J. LEGIS. 359, 361364 (2002). 278. Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. INTL L. 757 (2001). 279. Id. at 758. 280. Id. 281. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ REP. MERITS 14, 100, para.188189 (June 27) (noting that the States had expressed their attitude regarding legal obligations, opinio juris, by consenting to a General Assembly resolution entitled Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations and resolution of the International Conference of American States.).
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practice, and that instances of inconsistency with the practice had been treated as breaches of the rule rather than as generating a new law.282 However, this method has been criticized for failing to maintain the importance of sovereignty and voluntariness to be bound as the basis for customary law. Top scholars lament that what most perversely persist in calling customary international law is not only not customary law: it does not even faintly resemble a customary law.283 They argue that modern interpretation of customary international law cannot constitute binding law because it is not derived from implied individual consent or general acceptance.284 These concepts of how customary international law is formed are important in understanding that letters of marque remain valid under international law. But, one need not subscribe to a specific view of customary law formation to see that custom has not been formed. To support their claims that letters of marque violate customary international law, critics cite British and French decisions not to issue letters of marque against China in 1860 (even though China was not a signatory to the Paris Declaration); Chilean and Peruvian decisions not to issue letters of marque against Spain (again not a signatory); and the French decision not to issue letters of marque against Prussia as indicating that customary law has developed beyond the requirements of the Paris Declaration.285 They also point to the fact that the United States concluded agreements with France, Holland, Sweden, Prussia, Great Britain, Spain, and Colombia, which forbid U.S. citizens from accepting letters of marque from a third state, as an indication that America sought to limit privateering.286 However, other scholars counter that customary international law on privateering has not been established. They argue that nations decisions not to issue letters of marque after the Paris Declaration were due to practical considerations, rather than to a sense of obligation to a supposed international norm.287 Even under the modern approach, although letters of marque have not been issued since World War II (perhaps evidence of state practice), there is no
282. Id. at 98, para. 186. 283. Roberts, supra note 278, at 759 (quoting Robert Y. Jennings, The Identification of International Law, in INTERNATIONAL LAW: TEACHING AND PRACTICE 3, 5 (Bin Cheng ed., 1982)). 284. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INTL L. 449, 452, 457 (2000). 285. GARNER, supra note 273. 286. TWISS, supra note 225, at 8; see also ADAM ROBERTS & RICHARD GUELFF, Prefatory Note to the 1856 Paris Declaration, in DOCUMENTS ON THE LAWS OF WAR 23 (2d ed. 1989) (arguing that the long-term practice of United States and other nations after the Paris Declaration suggests that a prohibition on privateers exists as a matter of customary international law). 287. Robert P. DeWitte, Note, Let Privateers Marque Terrorism: A Proposal for a Reawakening, 82 IND. L.J. 131, 132 (2007); David D. Winters, Bring Back the Privateer, U.S. NAVAL INST. PROC., Apr. 2002, at 112; ADAM ROBERTS & RICHARD GUELFF, Respecting Maritime Law, in DOCUMENTS ON THE LAWS OF WAR 23 (2d ed. 1989).
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undisputed evidence of opinio juris that the Paris Declaration signatories or the United States universally banned the practice. Claims that the Paris Declaration constitutes the basis for a general customary international law prohibition of privateers conflict with the text and purpose of the Declaration, and with universally accepted methods of treaty interpretation. First, the Declaration explicitly states that it was applicable only between signatories engaged in war against each other.288 It does not prevent the use of letters of marque among nonsignatories, nor does it prohibit signatories from using letters of marque against nonsignatories. This pact is not binding upon [powers, like the United States], which have not acceded it.289 Because the Paris Declaration does not impose a universal ban, the existence of a custom cannot derive from the Declaration itself, but only from subsequent practice or, under the modern test, opinio juris in the form of statements of belief. Second, in subsequent wars, privateers were employedeven by Paris Declaration signatories.290 This suggests that practice was neither widespread nor universal. Subsequent practice by the United States and other nations, as evidenced during the Civil War, the Spanish-American War, and the World Wars, reflects the Paris Declarations narrow scope. When governments publicly issued letters of marque after the Paris Declaration, the international community did not lodge any objection against the practice.291 Finally, the widespread use of private military contractors, even by signatories of the Paris Declaration, indicates a broadening acceptance of private actors in warfare, in contrast with the narrative of an evolving trend favoring more restrictions on the use of private actors in war on which prohibitionists rely. Additionally, the U.S. failure to issue letters of marque in conflicts after World War II should not be attributed to an observance of international norms. The United States may have chosen not to issue letters of marque in the Vietnam, Korea, and Gulf conflicts because Congress never declared war.292 This suggests that the conditions necessary for the issuance of letters of marque under domestic law did not arise. The international community should not construe the lack of letters of marque in these conflicts as a basis for a customary obligation. Alternatively, even if a prohibition on privateers had become part of customary international law, the United States would not be bound due to its
288. The Declaration states that it is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it. RONZITTI, supra note 226, at 65. 289. TWISS, supra note 225, at 4; see also WILLIAM EDWARD HALL, INTERNATIONAL LAW 453 (1880). 290. At the outset of the Spanish American War both parties agreed not to issue letters of marque. The Spanish reserved the right to later issue letters of marque. See supra Section II.G. 291. See supra Section II.G (discussing Confederate and British use during the Civil War and of United States use during World War II). 292. SETH HAROLD WEINBERGER, RESTORING BALANCE: WAR POWER IN AN AGE OF TERROR 57 (2009).
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persistent objection to the Paris Declaration. Congresss action authorizing the president to issue letters of marque immediately after the Paris Declaration must be interpreted as an objection. This objection, along with subsequent practice, plays an important role in rebuffing contemporary claims that customary international law has formed against the use of privateers and that the United States is bound by it. On the first point, the American rejection of the Paris Declaration suggests that it had not been universally accepted. On the second point, even if custom had formed against the use of letters of marque, the United States prudently maintained the right to use letters of marque as a persistent objector.293 Under international law, a nation is not bound by a custom if it immediately and consistently objects, as the United States has with letters of marque.294 Consequently, international law cannot prohibit the United States from issuing letters of marque. The domestic framework for issuing letters of marque and dealing with pirates is also robust, although it is somewhat dated and at times harsh. Over the centuries, American courts have tried hundreds of prize cases, many involving letters of marque, which provide a well-developed jurisprudence for modern courts.295 Similarly, U.S. antipiracy laws are strong, but inadequately exercised. Title 18 of the U.S. Code prescribes that anyone convicted of piracy shall be imprisoned for life.296 American courts have repeatedly held that the piracy statute is applicable under universal jurisdiction to crimes committed around the world.297 If there is a sufficient nexus to the United States, other
293. See North Sea Continental Shelf Cases (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3, 229 n.6, 232 (quoting Judge Lachs). 294. To constitute a valid, persistent objection it must be: (1) timely, no subsequent objection is permitted; (2) actively, unambiguously, and consistently maintained by the asserting state; and (3) the state must intend to object, although no specific form is prescribed (i.e. it does not matter whether the objection is shown in practice, treaty negotiation, pleadings before a tribunal, diplomatic correspondence, or other means). David A. Colson, How Persistent Must the Persistent Objector Be?, 61 WASH. L. REV. 957, 95861, 96569 (1986). See also Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INTL L.J. 428 (1985) (observing that [the United States] should find in the persistent objector principle a doctrinal basis for freeing themselves from the results of multilateral processes that are seen as subject to the domination of a hostile majority.) The United States has recently stated that the doctrine of persistent objector remains valid. See Letter from the U.S. Government to the International Committee of the Red Cross n.38 (Nov. 3, 2006). 295. David J. Bederman, Review Essay: The Feigned Demise of Prize, 9 EMORY INTL L. REV. 31, 3738 (1995). 296. 18 U.S.C. 1651 (2006) (stating [w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the U.S., shall be imprisoned for life). 297. See United States v. Shi, 525 F.3d 709 (9th Cir. 2008) (applying universal jurisdiction to uphold the prosecution of Chinese nationals for attacking a Seychelles-flagged, Taiwaneseowned ship on the high seas); see also ALFRED P. RUBIN, THE LAW OF PIRACY 15058 (2d ed. 1998) (discussing other illustrative cases); Eugene Kontorovich, International Decision: United States v. Shi, 103 AM. J. INTL L. 734, 740 (2009) (questioning why nations that have exercised universal jurisdiction over difficult and politically sensitive human rights cases have not used it to
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provisions may apply. For example, if a pirate takes a hostage and the death of any person results, [the hostage taker] shall be punished by death or life imprisonment.298 Since the statute requires only a loose causal connection between the hostage taking and the fatality, pirates could be sentenced to death when bystanders, military, law enforcement officials, or even one of the pirate hostage-takers are killed.299 Pirates could also be prosecuted for terrorism,300 violence that endangers maritime navigation,301 or interference with commerce by threats or violence.302 In the one Somali case tried in the United States, a federal judge sentenced Maersk Alabama attacker Abduwali Muse to thirtyfour years after he plead guilty.303 Thus, the American legal system appears structurally and procedurally prepared to prosecute pirates if a letters of marque system was revived. IV. STRUCTURING A NEW LETTERS OF MARQUE REGIME Both domestically and internationally authorized, letters of marque constitute legally viable options under international law that should be employed against modern pirate networks. Many scholars have focused on the questions of universal jurisdiction and authority to prosecute pirates.304 While such questions are important, answering them will not end piracy. A legal framework must be developed that can respond to the threat in a cost-effective and sustainable manner and that maintains the legitimacy of the multinational approach already being employed. To that end, letters of marque should not be viewed as antiquated legal artifacts, but rather as important tools that can be authorized by the international community when warranted. In Somalia, letters of marque may be the only way to dismantle pirate networks. Since the Somali government lacks law enforcement capacity, foreign diplomatic measures will have little effect on changing the behavior of Somali citizens. Moreover, pirate networks operate across an expansive geographic range through a network of specialized nodes for command and
punish Somali piracy.). 298. 18 U.S.C. 1203(a) (2006). 299. Such a sentence is possible based on a literal reading of the code. See Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982); Foster v. Quarterman, 456 F.3d 359 (5th Cir. 2006). 300. 18 U.S.C. 2332 (2006). 301. 18 U.S.C. 2280 (2006). 302. 18 U.S.C. 1951 (2006). 303. Muse, a Somali teenager captured after the Maersk Alabama hijacking and suspected in connection with the seizing of two other vessels, was convicted of piracy and taking a ship by force. Deb Brunswick, Somali Pirate Sentenced to Almost 34 Years in Prison, CNN, Feb. 16, 2010, http://articles.cnn.com/2011-02-16/justice/new.york.pirate. sentencing_1_captain-hostage-maersk-alabama-somali-pirate?_s=PM:CRIME. 304. Eugene Kontorovich, Implementing Sosa v. Alvarez, 80 NOTRE DAME L. REV. 111, 135 (2004).
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control, logistics, financing, and recruitment.305 Wartime strategies, such as coastal bombardment of pirate bases or shore invasion, would result in heavy casualties. The possibility of military occupation to restore law and order seems unlikely, especially given the strong public sentiment against intervention after Iraq, Afghanistan, and failed past engagements in Somalia.306 Patrolling millions of square miles of the Indian Ocean would be impracticable and costprohibitive for the U.S. Navy and its coalition partners.307 Allowing private professionals to operate against pirates under letters of marque is consistent with the international law of reprisal and is permissible as individual or collective self defense.308 The 1982 United Nations Convention on the Law of the Sea defines piracy as, [A]ny illegal acts of violence or detention or any act of depredation committed for private ends on the high seas or in a place outside the jurisdiction of any state committed by passengers or crews of one vessel against another.309 On the high seasand in Somali territorial waters due to Sec. Council Res. 1851any governments agents may board vessels suspected of piracy as an exception to the otherwise exclusive jurisdiction of the flag state.310 Since privateers conduct operations on behalf of governments, essentially functioning like military vessels, they would be entitled to board, search, and seize pirate vessels.311 Consequently, if privateers discovered evidence of piracy onboard a suspect vessel, they could seize the vessel, arrest persons on board, and subject such persons to the jurisdiction of the courts of the state that issued the letter of marque.312 Under the principle of universal jurisdiction, the state that issued the letter of marque could also take any assets of pirates and their backers within the states territorial jurisdiction. Prosecuting individual Somali pirates, particularly the increasing number of minors, is not nearly as important as crippling the global network of financiers, backers, and negotiators. Issuing letters of marque allowing privateers to seize assets, such as ships, high-speed engines, weaponry, and telecommunications equipment vital to the operations of pirate backers would be a cost-effective way to halt their operations. Privateers could proactively seize pirate skiffs and mother ships with ties to the gangs from pirate controlled
305. Richard, supra note 2, at 418. 306. Spiegel, supra note 80. 307. See Schwartz, supra note 2, at 504. 308. See U.N. Charter art. 51 (preserving each members inherent right of individual or collective self-defence until the Security Council takes action). 309. Geneva Convention on the High Seas, Apr. 29, 1958, 450 U.N.T.S. 82 art. 15; UNCLOS, supra note 107, art. 101. 310. UNCLOS, supra note 107, arts. 92(1), 110; S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008). 311. UNCLOS explicitly acknowledges that ships other than warships or military aircraft can seize pirate vessels and property so long as they are marked and identifiable as being on government service and authorized to that effect. UNCLOS, supra note 107, art. 107; see also The Joseph, F. Cas. 1126 (C.C.D. Mass. 1813). 312. See UNCLOS, supra note 107, art. 105.
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cities, such a Eyl and Hadahere, as they leave port.313 Seizing these hard assets would be more effective than prosecuting personnel. Why then have letters of marque been neglected by global policymakers and scholars? In addition to the confusion over the scope of the Paris Declaration described earlier, many mistakenly believe UNCLOS Part VII Article 107 prohibits privateers.314 It does not. The article reads, [a] seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.315 The second part of this article speaking to other ships or aircraft implies that nonmilitary ships can be used to hunt pirates. Clearly identified privateers can operate legally under the authority of letters of marque to seize [vessels] on account of piracy, if government authorized.316 Moreover, UNCLOS requires all states to cooperate to the fullest possible extent in the repression of piracy.317 This includes the ability to seize a[ny] pirate ship or aircraft, arrest the persons, seize the property on board, and decide upon the penalties to be imposed.318 Taken as a whole, UNCLOS requires substantial action against piracy, contemplates privateers, and places only modest restrictions on their operations. Since states have a right under international law to hire contractors and private individuals to support their military efforts, it seems reasonable that international authorities would be entitled to do the same.319 Private security forces have played an increasingly important role in modern conflictsin some instances performing functions nearly identical to their uniformed counterparts.320 For example in Iraq, private contractors have defended bases,
313. Rice, supra note 55 (quoting U.S. Vice-Admiral Mark Fox as saying that a number of pirate gangs, pirate action groups, are known to military forces and that they should be tracked in effort to disrupt their supply chains). 314. See M.D. Fink & R.J. Galvin, Combating Pirates Off the Coast of Somalia: Current Legal Challenges, 56 NETH. INTL L. REV. 367, 390 (2009). 315. UNCLOS, supra note 107, pt. VII, art. 107. 316. Id. Critics mistakenly believe this article prohibits privateers, while it actually just requires them to be properly identified as such. The article is likely a response to the deceptive practices of the Russian volunteer navy, which pretended to be merchant vessels during the Russo-Japanese War. See discussion supra notes 24348. 317. UNCLOS, supra note 107, pt. VII, art. 100. 318. Id., at pt. VII, art. 105. 319. For general discussion of mercenaries and private contractors under modern international law see app. I and II to art. 47 of the Geneva Convention, the Organization of African Unity Convention for the Elimination of Mercenaries in Africa, and the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries; see Christopher Kinsey, International Law and the Control of Mercenaries and Private Military Companies, CULTURES AND CONFLICTS, June 28, 2008, http://conflits.revues.org/ index11502.html. 320. See generally Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & MARY L. REV. 136, 148 (2005) (reviewing use of profit-seeking security companies over the last two decades).
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trained the Iraqi army, and interrogated prisoners.321 Letters of marque do not alter these recognized roles, but rather change the way the government compensates contractors, allowing private enterprises to collect payment through prize courts. A new letters of marque regime would not alter the practice of employing contractors, but would merely alter their form of compensation. Under the positivist principle of international law, state actions are deemed permissible so long as they are not forbidden by treaty or in violation of jus cogens or custom.322 Some might argue that the Paris Declaration outlaws the use of letters of marque against other signatories, but it does not speak to issuing them against pirates or, as explained previously, nonsignatories like the United States. Consequently, a new letters of marque regime, coupled with the UNCLOS, could provide a functional, legal framework under international or domestic authority for using privateers against pirates, while adhering to international law. Similarly, letters of marque regimes are valid under domestic law in the United States. The Constitution directly provides for letters of marque in Article I, Section 8, bestowing on Congress the power to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.323 There has been much debate in American scholarship regarding the distribution of war powers between the legislature and the executive branch.324 Advocates of a strong unitary executive assert that during war the presidents powers should expand to allow him to respond effectively
321. Nicholas Parrillo, The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century, 19 YALE J.L. & HUMAN. 1, 2 (2007). 322. See S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (holding that sovereign nations are presumed to have the ability to exercise rights unless forbidden by treaty or custom). 323. U.S. CONST. art. I, 8, cl 10. 324. Since the Vietnam War a number of scholars have broadly interpreted art. I, sec. 8 to mean that the president cannot use troops in foreign military operations without congressional authorization. See Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 69497 (1972) (arguing that knowledge of the theory and practice of war and reprisal would have helped convince a late-eighteenth century American that the Constitution vested Congress with control over the commencement of war, whether declared or undeclared); see also Sidak, supra note 142, at 465, 496499 (observing that three concurring opinions in Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) interpret the Letters of Marque and Reprisal Clause to greatly enhance congressional authority over undeclared wars). Others construe the clause more narrowly, saying limits on the presidents war powers only refer to private contractors. Douglas Kmiec, Dean of the Columbus School of Law, The Catholic University of America, testifying before the Senate Judiciary Committee, noted that Congresss authority to moderate or oversee private action . . . says absolutely nothing about the Presidents responsibilities under the Constitution. Hearing Before the S. Judiciary Comm., 107th Cong. (2002) (testimony of Douglas Kmiec), http://judiciary.senate.gov/hearings/testimony.cfm?id= 225& wit_id=438. A third group suggests it could be used by a hawkish Congress to provide a check on faint-hearted presidents as a method of warfare independent of the president. See William Young, A Check on Faint-Hearted Presidents: Letters of Marque and Reprisal, 66 WASH. & LEE L. REV. 895 (2009).
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to contingencies,325 while a textual constitutional reading supports Congress exercising complete control. Correctly understood, the power is analogous to the other war powers described in Section 8: Congress has the power to declare war,326 but the president oversees the use of forces in conflict.327 This suggests Congresss level of involvement in letters of marque should be similar to that of declaring war, leaving to the Executive Branch the power to command and police privateers. An examination of the Constitutions structural organization similarly suggests Congress was not meant to have complete control over privateers.328 Enforcement and employment of privateers has historically been left to the president consistent with other executive war powers.329 Practice reinforces this notion; Congress has repeatedly authorized the president to issue letters of marque.330 During the Barbary Wars, President James Madison added specificity to privateer instructions.331 Special instructions attached to letters of marque included the phrase by command of the President of the U. States of America and were signed by the secretary of state to certify consistency with foreign affairs policy and international law.332
325. Looking to the Framers, one finds support for this vision of executive competency in Alexander Hamiltons comparison between the powers held by state governors under the Articles of Confederation and by the commander-in-chief under the Constitution. While the United Colonies operated under the Articles of Confederation governors had been given expansive powers to kill, slay, and destroy by any appropriate method those who threatened to harm or even annoyed the state. Because the president assumed the foreign policy and national defense responsibilities previously exercised by governors, logically he would be entitled to exercise similar powers as the commander-and-chief. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 305 (1936); see also Yoo, supra note 192, at 253 (referring to THE FEDERALIST NO. 69, at 46566 (Alexander Hamilton) (Jacob E. Cooke ed., 1982) and observing the commander-in-chief power in state constitutions). 326. U.S. CONST. art 1, 8. 327. U.S. CONST. art 1, 8 states Congress shall have the power to [t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. U.S. CONST. art 1, 8. 328. Immediately preceding the clause granting Congress war-making and letter of marque powers, the Constitution mandates that Congress shall have power [t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Taken together with the following provision grant[ing] Letters of Marque, a critical gap in Congresss power over letters of marque is revealed: Congress can craft laws to punish pirates and grant letters of marque, but cannot command the privateers. U.S. CONST. art 1, 8. 329. U.S. CONST. art 2, 2. 330. As explained in detail above, during the Barbary War, supra notes 203205, the Quasi Wars, supra notes 211213, and the War of 1812, supra note 215, the president commissioned privateers under congressional authorization. After the Paris Declaration, Congress authorized letters of marque, but the president did not issue any. 331. James Madison specified that the Grand Turk could cruise against any Algerine vessels, public or private, goods and effects, of or belonging to the Dey of Algiers. EASTMAN, supra note 151, at 45 (reproducing a Letter of Marque granted in 1815 to the Grand Turk). 332. See DOUGLAS L. STEIN, AMERICAN MARITIME DOCUMENTS 17761860, at 5 (providing an example signed by Secretary of State James Monroe of instructions accompanying Letters of Marque, which were given to the commanders of these private armed vessels after the
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Letters of marque represent Congress availing the president of another tool to protect shipping, bolster American interests, and restore rule of law to the seas. The following Sections consider two key elements of any letters of marque regime: first, procedural safeguards to ensure fairness and due process and second, ways privateers could be incentivized to respond in the current Somali context. A. Procedural Safeguards via Prize Court Adjudication and Oversight Experience in domestic courts illustrates that procedural safeguards, such as prize court adjudication and careful oversight, are sufficient to protect due process rights. U.S. prize law statutes did not create new statutory procedures, but merely recognized already existing practice in accordance with existing international law. Article I, Section 8 of the Constitution states that Congress shall have power to . . . make Rules concerning Captures on Land and Water.333 The law of capture is an inherent international right that predates the Constitution. The American formulation of prize law derives chiefly from British admiralty law and the writings of Justice Story.334 The Supreme Court has held privateers cruising under letters of marque are entitled to seize enemy vessels subject to prize law.335 Congress has exercised its Article I, Section 8 powers by authorizing seafarers to take broad defensive actions, even allowing for letters of marque and retaliation against known pirate entities.336 As a result,
bond was signed and the commission was obtained), available at http://library.mysticseaport.org/ initiative/ImText.cfm?PageNum=5&BibID=6405&ChapterID=23. 333. U.S. CONST. art. I, 8. 334. THE LIFE AND LETTERS OF JOSEPH STORY 318 (William M. Story ed., 1851). Americans copied the rules from the British courts, which, so far as cases have arisen to which they could apply, have been recogni[z]ed and enforced by the [Supreme Court]. I HENRY WHEATON, REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, app. n.2, 494. In The Siren, the Supreme Court notes that courts should look to English prize law so far as it is adapted to the altered circumstances and condition of the country, and has not been modified by the proper national authorities. 80 U.S. (13 Wall.) 389 (1871). 335. See Hooper v. United States, 22 Ct. Cl. 408, 429 (1887) (referring to Bas v. Tingy, 4 U.S. 37 (1800) and stating that privateers function as legal combatants in limited, imperfect war, not general public war, but war complete as to the vessels engaged in it to the extent only of the powers given by the Congress and that where a private vessel was fitted for the purpose of attacking armed French vessels, and of recapturing American vessels seized, she fell within the rules of war, and if captured, became legitimate prize. The relations of the two nations being strained to hostilities within certain distinctly defined bounds, within those bounds the active agents of either Government were subject to the rules of war, and vessels intending to seize must submit to seizure.). 336. Resistance of Pirates by Merchant Vessels Act of 1819, 33 U.S.C. 383 (2000) (enacted Mar. 3, 1863) (stating [t]he commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United
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American prize law related to piracy and letters of marque is well developed with sound procedural safeguards. Procedurally, when taking a ship, the privateer must inventory the goods and ensure the ship belongs to enemy belligerents.337 The captor must install a prize master to keep the prize safe for adjudication and must promptly take the prize to port. After arriving in port, the privateer must deliver, upon oath, all evidence found onboard the captured vessel to the prize court.338 Under the Judiciary Act of 1789 and the Supreme Courts decision in the Sloop Betsey, all a court of admiraltys powers, in both instance and prize, are vested in federal district court.339 The crew of the captured ship must be taken to court for adjudication as well.340 Prize courts must determine whether the prize was legitimate. This entails finding that the prize belonged to the enemy and that the captor had appropriate authority to seize it. If the court concludes the seizure was valid, it declares the title of the captured merchant ships and cargoes transferred to the captor. Under international law and reciprocity, the new title is good against the world and the ships can circulate in world trade and commerce free from any claim of previous owners, mortgagees, lien holders, or others.341 American courts have decided over one thousand instances of prize, and foreign and international tribunals have challenged few of these decisions.342 During World War II, Congress reaffirmed its commitment to prize in a series of acts extending prize law to aircraft, expanding maritime jurisdiction to the high seas and to ports of cobelligerents, allowing prizes to be adjudicated in physically different locations than the captured prize, and appointing special prize commissioners to act abroad.343 Numerous jurists and scholars considered
States.). 337. See GODFREY LUSHINGTON, A MANUAL OF NAVAL PRIZE LAW (1866). 338. The Diana, 7 F. Cas. 634 (C.C.D. Mass. 1814). 339. 6 U.S. 64 (1804). 340. The Bothnea, 3 F. Cas. 962, 966 (C.C.D. Mass. 1814), revd on other grounds, 15 U.S. (2 Wheat.) 169 (1817). 341. See Arnold W. Knauth, Prize Law Reconsidered, 46 COLUM. L. REV. 69, 74 (1946) (noting that there is no statute, treaty, or general convention declaring that the adjudication in a prize court gives a title good against the world, but the proposition is generally conceded to be custom). In Oakes v. United States, the Court stated that when . . . property is captured by naval forces a judicial decree of condemnation is usually necessary to complete the title of the captors. 174 U.S. 778, 78687 (1898); see also Kirk v. Lynd, 106 U.S. 315, 317 (1882); HENRY WAGER HALLECK, ELEMENTS OF INTERNATIONAL LAW 206, 317 (1866). 342. However, following the Treaty of Washington in 1871, British subjects appealed from decisions of American prize courts and in six cases the international arbitration tribunal established by the treaty reversed the rulings. E.M.B., Comment, Appeals from Judgments of Prize Courts, 28 YALE L.J. 583, 587 (1919) (citing The Hiawatha, 67 U.S. (2 Black) 635 (1862); The Circassian, 69 U.S. (2 Wall.) 135 (1864); The Springbok, 72 U.S. (5 Wall.) 1 (1866); The Sir William Peel, 72 U.S. (5 Wall.) 517 (1866); The Science, 72 U.S. (5 Wall.) 179 (1866)). 343. Prize Acts of 1941, 1942, and 1944. 55 Stat. 261 (1941) (codified at 34 U.S.C. 1131 (Supp. 1945)); 56 Stat. 746 (1942) (codified as amended by 58 Stat. 678 (1944) at 34 U.S.C. 115966 (Supp. 1945)).
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the questions of prize law at that time to develop a robust body of modern jurisprudence.344 If prize were reinstated today, well-developed case law exists to enable principled adjudication, with fair treatment and efficient proceedings. Such courts and recognized oversight procedures would be essential to maintain fairness and due process in either a domestic or an international letters of marque regime. Without any international or domestic legal bars, the U.S. Congress could safely and transparently reinstate letters of marque. Today, both sides of the political spectrum express openness to using private entities to fight pirates and protect merchant shipping.345 The principle objectives for politicians reinstating letters of marque should be transparency and accountability. This can be achieved by installing the following safeguards. First, letters should only be issued to trusted and disciplined professionals. Some have argued that to protect U.S. vessels, persons, and interests, Congress should authorize letters of marque to shippers.346 But it would be nearly impossible for the U.S. government to effectively train and supervise security forces onboard the 20,000 vessels that pass through the Gulf of Aden each year. Furthermore, merchants would be hesitant to participate; they are in the business of transporting cargo, not hunting pirates.347 Moreover, international legal and economic problems would be more pronounced in a system arming merchant ships rather than creating a professional force. Under the Hague Convention, such grants of power to merchants would not be allowed unless the ships fell under the authority of the
344. Bederman, supra note 295, at 3738 (noting that at least eleven World War II prize cases were heard in American courts). 345. Most notably, on the conservative side, is Rep. Ron Paul. Competitive Enterprise Institute Fellow Eli Lehrer notes, [R]ight now we have a Navy designed mostly to fight other navies. The weapons we have are all excellent, but they may not be the best ones to fight these kinds of pirates. The only cost under letters of marque would be some sort of bounty for the pirates. Andrew Grotto, senior national security analyst at the liberal Center for American Progress agrees that if you give people incentives to fight piracy, youll see more action taken against it . . . the ocean is huge and, practically speaking, theres no way the Navy can prevent piracy; its too big. Both sides are quick to add that privateers should be kept on a short leash. Erika Lovley, Ron Pauls Plan to Fend Off Pirates, POLITICO (Apr. 15, 2009, 4:16AM), http://www.politico.com/news/stories/0409/21245.html. 346. See Schwartz, supra note 2. 347. Most commercial mariners lack the professional military ethics and training necessary to conduct themselves in a disciplined fashion in combat situations. See Mark Clayton & Bridget Huber, To Stop Pirates, Do Ships Need Firepower?, CHRISTIAN SCI. MONITOR, Apr. 8, 2009, http://www.csmonitor.com/layout/set/print/content/view/print/209529 (citing Giles Noakes, a chief maritime security officer for an international ship-owners association, as saying [t]he industry believes very strongly that its not for the companies to train crews to use firearms and then arm them . . . [c]rews could get injured or killed, to say nothing of damage to the ship). After abuses by contractors in Iraq and Afghanistan, policy makers may be hesitant to trust them. See, e.g., Joshua Sudock, Private Security Contractors Causing US Headaches, ORANGE CNTY. REG., Dec. 31, 2010, http://m.ocregister.com/news/contractors-281002-private-causing.html.
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military and had disciplined crews.348 Such a program would entail great administrative costs for military overseers in training and supervising merchant mariners. For the shippers, it would not be cost effective, especially when so few ships are actually attacked. Additionally, merchant shippers would not want to be responsible for arresting and detaining pirates and would want to avoid delays and investigations. Merchants would also resist subjugating their ships to military authorities, which might require them to change to more costly vessel characteristics or operational practices. Overall, utilizing private security on transiting vessels would be fraught with accountability and oversight problems and would burden the shipping industry with added expenses. Policymakers should avoid militarizing the merchant fleet, which would result in the relatively unchecked transport of weapons and trained mercenaries around the globe. Instead, they should seek a more tailored program that keeps merchants separate from law enforcement activities. Domestic or international authorities, such as the United Nations Security Council or the International Tribunal for the Law of the Seas, could commission a new, professional volunteer navy to fight Somali pirates. Though they would function under the authority and supervision of naval forces, their compensation would be derived from prize or bounty. Such an enterprise would fulfill the requirements of the Hague Convention, as well as the Paris Declaration as understood in the Franco-Prussian War Case, which permitted marked and organized private volunteer navies.349 Under either an international or domestic system, the U.S. Navy or task-force navies could provide training, routine inspection, and back up to the privateers. The volunteer fleet would be of manageable size and could develop professional competencies. Its relatively small size would also allow it to maintain profitability. By operating under the guidance and direction of naval commanders, the volunteer fleets would avoid previous problems with authority, discipline, and supervision. Consequently, privateers could function in a regulated fashion in tandem with governmental naval forces. Second, history suggests that unchecked privateers are likely to devolve into piracy.350 Therefore, issues of accountability, responsibility, and control are of upmost importance. The international body tasked with issuing letters of marque or the U.S. authorities should impose significant substantive and procedural requirements on privateers in excess of those currently required by American prize law. Under the U.S. Constitution, Congress can impose
348. Convention (VII) relating to the Conversion of Merchant Ships into War-Ships. The Hague, 18 October 1907, supra note 253, art. I. 349. TWISS, supra note 225, at 12 (citing Prussian Government Decree on the Constitution of a Volunteer Naval Force, Jul. 24, 1870). 350. See discussion at supra note 158 about the difficulty of overseeing privateers.
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additional qualifications on the conduct of privateer operations.351 Principally, authorities should create safeguards to ensure privateers take only true pirate vessels. Privateers should be required to provide a large bond to cover payments for any vessels or persons improperly seized. This would discourage unlawful takings. Additionally, privateers should be required to provide justification to regional military commanders via satellite phone, stating the evidence that a particular vessel may be involved in piratical activities. Alternatively, when military commanders glean information about pirate movements from ground intelligence or unmanned aerial vehicles, they might direct privateers to specific targets. Another approach would be to require privateers to seek judicial permissionsimilar to a warrantfrom an international tribunal or domestic court prior to attacking a suspected target. These measures would reduce the possibility of mistakenly taking innocent vessels. Authorities could also specify disciplinary actions, such as criminal punishments, sanctions, and forfeiture of bonds for privateers that misbehave. Further, in a domestically administered system, subjecting modern privateers to the Uniform Code of Military Justice, as Congress has done with contractors engaged alongside U.S. forces in combat,352 and with privateers in 1812, would reinforce their subjugation to military authorities. 353 Modern technology could also help to eliminate the problems that led to the use of privateers falling out of favor in the past. Centuries ago, space, time, and distance prevented governments from playing an active role in privateer operations. Government involvement was limited to issuing letters of marque, dividing the spoils, and overseeing prize courts. Without supervision, privateers essentially became pirates. Today, technology allows relationships between privateers and governments to be more constructive and involved. Authorities could oversee privateer movement via GPS tracking, satellite imagery, and surprise inspections. Issuers, whether domestic or international, could require privateers to video record and instantly transmit live feeds of their operations. This would provide assurances that privateers abide by law and adhere to the guidance provided by the issuing country. Unlike in bygone eras, communication would be constant. These technological improvements aid in transparency and allow countries to exercise greater control over the privateers. Third, any letters of marque regime should be structured to encourage low-cost prosecutions for seagoing pirates by pairing privateers with ship351. During the Revolutionary War any cold-blooded killing or torturing would result in severe criminal punishment, the forfeiture of the bond, and civil liability. See Marshall, supra note 176, at 962. 352. Parrillo, supra note 321, at 3. Admittedly, this raises legal questions about whether the military can try civilians in a court-martial. Anna Manasco Dionne, Comment, In Time of Whenever the Secretary Says: The Constitutional Case Against Court-Martial Jurisdiction over Accompanying Civilians During Contingency Operations, 27 YALE L. & POLY REV. 205 (2008). 353. Parrillo, supra note 321, at 3335 (privateers could be tried in courts-martial composed of naval officers).
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riders from regional coastal states. Law-enforcement officials could embark on the privateer vessel to observe and to carry out any functions deemed better suited for government officials. Having a single government official onboard would be dramatically less expensive for the state than supporting an operational warship. Ship-rider agreements have long been used in the maritime drug interdiction context to facilitate law enforcement activities between capturing and prosecuting countries.354 In the piracy context some have noted that matters would be simplified if an official from the country conducting the trial made the arrests and gathered the evidence.355 This practice would heighten accountability and make the practice of issuing letters of marque more reliable. Placing a law enforcement officer onboard would also facilitate the prosecution of suspected pirates and help to ensure their procedural rights are protected.356 In December 2008, the Security Council called on regional governments to coordinate ship-rider programs with the extraregional navies.357 The Security Council could extend this mandate to privateers. This program would pair the lowest-cost enforcers (privateers) with the lowest-cost justice providers (the regional governments). Fourth, authorities could further incentivize the spread of rule of law by only paying bounties or allowing payment via prize if pirates are successfully prosecuted. This system would encourage privateers to document their activities and to avoid using means that would invalidate prosecution. Privateers might be required to provide video footage of their entire operation and to collect evidence. It would also encourage privateers to participate in the judicial processes and to turn pirates over to competent legal authorities. Under the SUA Convention, privateers should be allowed to turn pirates over for prosecution in virtually any country. By paying bounties only if privateers maintain certain high standards, authorities could prevent a race to the bottom, which can occur in publicly funded private contracts. Profit motive encourages privateers to achieve missions at the lowest cost, thus encouraging providers to manipulate the system or to cut corners.358 Conditional bounties would incentivize quality performance by making compensation outcome dependent. A system utilizing privateers and letters of marque could provide pirates with the same, if not better, due process protections as one utilizing military
354. See WILLIAM GILMORE, FOREIGN AND COMMONWEALTH OFFICE, AGREEMENT CONCERNING CO-OPERATION SUPPRESSING ILLICIT MARITIME AND AIR TRAFFICKING IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES IN THE CARIBBEAN AREA, 2003, at 36 (2005). 355. Guilfoyle, supra note 37, at 150. 356. United Nations Office on Drugs and Crime, Shipriders Tackling Somali Pirates at Sea (Jan. 20, 2009), http://www.unodc.org/unodc/en/frontpage/ship-riders-tackling-somali-pirates-atsea.html. 357. S.C. Res. 1851, U.N. Doc. S/RES/1851 (2008). 358. Gaul, supra note 192, at 1491.
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fleets. Privateers would respond to intelligence reports of pirate activity, such as distress calls from mariners or from aerial tracking. Since letters of marque are issued only against an enemy, privateers would be able to seize only actual pirate vesselswhich is a higher standard than that of navies that routinely conduct inspections of merely suspicious vessels.359 Moreover, privateers could be charged in prize courts for improper seizures or other unnecessary damages. These protections would provide mariners suspected of piracy with greater due process rights than the status quo.360 Finally, authorities could place part of the cost burden of security on shippers by allowing privateers to collect military salvage for rescuing ships from imminent pirate attack. Well-positioned privateers in the area might be able to rapidly respond to distress calls in fast boats or helicopters. This fast response might prove a more effective deterrent than large but sparsely spread fleets of naval warships. The privateers would be able to carry devices, lethal and nonlethal, that would be prohibitively expensive for shippers to carry onboard, such as long-frequency manipulators that can stall outboard engines, dazzle lasers, and sonic weapons.361 Responding privateers could collect bounty and salvage fees for saving ships from the pirates. Consequently, by providing procedural safeguards and oversight, authorities can structure a letters of marque regime to avoid earlier pitfalls.
359. Letters of marque issued to commissioned privateers acting on behalf of the state would be governed by Articles 105 and 106 of UNCLOS in that on the high seas every state may seize a pirate ship or aircraft, or ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. Under 106 the privateers are liable via the state for seizures without adequate grounds. UNCLOS, supra note 107, arts. 105106. 360. Under the current enforcement system, which employs large naval warships to patrol, there is no obvious avenue for Somali seafarers to challenge wrongful actions. For example, on January 22, 2011, a Dutch frigate used a sharpshooters bullet to destroy the outboard motors of skiffs onboard a vessel presumed to be a pirate mother ship. The Dutch presumed it was a pirate vessel because it did not respond to radio calls, but what if the ship was innocent? How would its owners seek redress from the Dutch? Somalia lacks a judicial system, let alone a practical mechanism for securing compensation from the Dutch. The average Dutch court might be inexperienced with prize and possibly prejudiced in favor of its navy. Under a letter of marque system all privateers would have to put up a bond, channels for redress would be clear, and prize courts might be less sympathetic to privateers than to government actors. See Taking It to the Somali Pirates: Dutch Frigate Opens Fire on Pirate Ship, EAGLE SPEAK (Jan. 22, 2011, 06:27PM), http://www.eaglespeak.us/2011/01/taking-it-to-somali-pirates-dutch.html. 361. Laser Gun to Be Used Against Somali Pirates, INSIDE SOMALIA (Sept. 9, 2009, 08:08), http://insidesomalia.org/200909092156/News/Media-Technology/Laser-gun-to-be-usedagainst-Somali-pirates.html; Kate Ravilious, The Secrets of Sonic Weapons, GUARDIAN (London), Nov. 8, 2005, http://www.guardian.co.uk/science/2005/nov/08/g2.weaponstechnology.
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V. NEW LETTERS OF MARQUE REGIMES AS APPLIED TO THE HORN OF AFRICA SITUATION: INCENTIVIZING PRIVATEERS AND DISMANTLING PIRATE NETWORKS Letters of marque and reprisal can motivate privateers to take action against Somali pirates. While pirate belongings such as skiffs and mother vessels usually are not valuable enough to motivate privateers via traditional prize, there are other ways privateers could be appropriately rewarded for cruising against Somali pirates: (1) bounties and rewards; (2) land-based assets; and (3) the ability to seize the assets of kingpins. However, bounty appears most appropriate for incentivizing privateers. Bounty is a grant made by the government out of public monies to reward bravery and encourage success in naval operations.362 The jurisdiction of prize courts includes the power to determine on a case-by-case basis whether captors are entitled to prize bounty. Historically, courts deemed captors to have earned a share of bounty when they took an armed ship.363 The British Naval Prize Act of 1864 and the Order in Council of March 2, 1915 rewarded captors with a share of money at five shillings per person on the enemy ship at the beginning of the engagement.364 During WWI British sailors were entitled to receive a bounty, even for missions on land.365 In America, the Continental Congress paid a bounty of twenty dollars per cannon and eight dollars per man captured.366 Recognizing the need to incentivize actual military effectiveness, Congress passed the Bounty Act as one of its first bills after the Constitution was ratified.367 Under the Bounty Act, the U.S. government paid sailors bounties for taking enemy prizes.368 The Supreme Court upheld the payment of substantial bounties to persons responsible for the capture or destruction of enemy fleets.369 In 1899, Congress repealed the Bounty Act out of concerns that such bounties were unfair and deleterious to naval discipline.370 When Congress
362. See In re: Surrender of Tsingtau, [1917] P. 127 (U.K.) (Claim of H.M.S. Triumph and H.M.S. Usk). 363. GARNER, supra note 273, at 3637. 364. Id. at 35. 365. Crew members of the Emden were awarded for destroying a telephone apparatus on land. Id. at 36. 366. Knauth, supra note 341, at 70 n.4. 367. 1 Stat. 715 (1788). 368. Sailors received a portion of the sum of $100 times the number of enemy persons onboard if the U.S. force was superior and $200 per enemy person if the enemy force was greater. This bounty was repealed after Admiral Deweys fleet earned a sum of $191,400 for their efforts in the Battle of Manila in 1899. Admiral Sampsons sailors collected similarly high bounties for taking the Spanish fleet at Santiago. See Dewey v. United States, 178 U.S. 510 (1900). 369. Id. 370. 30 Stat. 1004, 1007 (1899); see Art. 15 (revised) of the Articles for the Government of the Navy, 34 U.S.C 1200 (1940); see also Knauth, supra note 341, at 7071 (noting that the
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made this decision, the Secretary of the Navy did not recommend abolishing bounty or prize money, because he believed it motivated sailors.371 International law scholars and military strategists have long suggested that the abolition of bounty may have been a misdirected and unnecessary step in modifying the law of capture regarding private property at sea.372 These scholars have argued that Congress could have limited the rewards in the prize money system without changing the bounty system, which rewarded victory in battle.373 In dealing with pirates, privateer bounties would reward zeal and courage in dismantling pirate networks. As a result of Congresss action, American courts have not considered bounty law in over one hundred years. All of the courts jurisprudence on the law of capture remains unchanged and continues to hold that bounty and prize are constitutional; were Congress to reinstate the Bounty Act, that jurisprudence would be available. The U.S. government currently uses bounties to incentivize the enlistment of private citizens in law enforcement activities, such as bail enforcement officersalso known as bounty hunters.374 The Department of Defense offers bounties to apprehend terroriststhere is currently a twenty-five million dollar bounty on Osama bin Laden.375 Scholars observe that bounty programs are popular in the United States because they work.376 American courts have consistently upheld bounty schemes, sometimes called reward programs.377 The Supreme Court has upheld moiety acts which require the government to pay informants part of the penalty or fine imposed on a lawbreaker.378
senior naval staff officers felt it was unfair that sailors in combat received such large bounties for their service, while their land-based support and planning teams received nothing; and citing the Brief for the United States at 132 Manila Prize Cases, 188 U.S. 254 (1903) (Nos. 30911), which noted that the repeal of prize and bounty money statutes was due to a sentiment that the practice was subversive to naval discipline). 371. H.R. Doc. No. 3, at 57 (55th Sess. 1898). 372. See H. S. Quigley, The American Attitude Towards Capture at Sea, 11 AM. J. INTL L. 820, 836 (1917). 373. Id. 374. E.g., Wanted by the FBI, FEDERAL BUREAU OF INVESTIGATION, http://www.fbi.gov/wanted.htm (Americas Most Wanted) (last visited Apr. 3, 2011); 15 U.S.C. 78u (1994) (SEC insider trading reporting system); 26 U.S.C. 7623 (IRS informant bounty); 31 U.S.C 372933 (Customs Service false declaration program); 12 U.S.C. 1831k (Federal Savings and Loan Administrations Reform and Transparency Program); see also Marsha Ferziger & Daniel Currell, Snitching for Dollars: The Economics and Public Policy of Federal Bounty Programs, 1999 U. ILL. L. REV. 1141, n.12 (1999) (listing as further examples, the Environmental Protection Agencys hazardous waste program, the marine mammal protection program and the anti-ocean dumping program). 375. Bill Dedman, Gitmo Interrogations Spark Battle over Tactics, MSNBC, Oct. 26, 2006, http://www.msnbc.msn.com/id/15361458/ns/world_news-terrorism; Lovley, supra note 345. 376. Ferziger & Currell, supra note 374, at 1143. 377. See generally id. at 1163 (citing Barker v. Lien, 366 F.23d 1307, 1310 (Fed. Cir. 1999) to illustrate judicial approval of agency discretion in administering bounty programs). 378. See John Doe v. United States, 100 F.3d 1576, 1582 (Fed. Cir. 1996) (explaining [n]owhere did Congress indicate any intention to disturb the longstanding judicial interpretation
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Privateers will be motivated by a bounty whether funded by the public coffers or via collections from civil penalties against pirate assets. Issued in tandem with bounties, letters of marque provide an efficient way to confiscate pirate vessels prior to attacks. A. Land-Based Seizure Letters of marque also provide a method of seizing or destroying landbased assets used by pirates in their ports. Prize jurisdiction extends to seizures made in ports,379 and such jurisdiction does not end merely because the goods have landed.380 In the World War I Roumanian case, the British Prize Court held that oil taken from a ship being stored on land fell under prize jurisdiction.381 Even though the vessel was strictly on land and not even in port the British judge still considered it to be a valid prize.382 U.S. district courts have held that the seizure of goods in a warehouse can be considered a maritime seizure.383 The Supreme Court limited this line of cases, holding that cargo transported by land outside of a port could not be condemned unless legislative action authorized the confiscation.384 Still, this case law suggests privateers can use letters of marque to seize and destroy the land-based assets of pirate kingpins located near the shore. B. Global Seizure of Kingpin Assets Letters of marque provide the capability to seize assets of pirate leaders on behalf of the issuing nation. Early scholars assumed pirates to be enemies of the human race, hostis humanis generis, under international law.385 In later
of the moiety statute as money mandating). 379. JOSEPH STORY, NOTES ON THE PRINCIPLES AND PRACTICE OF PRIZE COURTS 28 (1854). 380. Lindo v. Rodney, [1782] 2 Doug. K.B. 613 (Gr. Brit.). 381. GARNER, supra note 273, at 21112. (quoting Judge Sir Samuel Evans). Another World War I case involved German seagoing tugs that had been transported by rail over one hundred miles inland to avoid capture, but that were eventually seized by advancing British forces. The owners claimed that the tugs could not be considered prize because they were not captured by naval forces and were not being tracked in hot pursuit. Nevertheless, Lord Sterndale said he had no doubt they were the subject of maritime prize on account of their potential for navigation. He further held that it did not matter what type of force, naval or otherwise, captured them. GARNER, supra note 273, at 221 (quoting Anichab and other Vessels and Craft, IX Lloyd 119). 382. Id. 383. 103 Casks of Rice, in SAMUEL BLATCHFORD, CASES IN PRIZE 211 (1862). 384. Id. 385. Gentilli explains that: [p]irates are common enemies, and that they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they can find no protection in that law. They ought to be crushed by us . . . and by all men. This is warfare shared by all nations. ALBERICO GENTILLI, DE IURE BELLI LIBRI TRES 423 (1612) (John C. Rolfe trans., William S Hein & Co. Inc. ed. 1995). The prohibition of piracy jure gentium is generally understood to have
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American jurisprudence, the Supreme Court similarly found in Brig Malek Adhel that a pirate is deemed, and properly deemed, hostis humani generis [b]ecause he commits hostilities upon subjects and property of any or all nations, without any regard to right or duty, or any preten[s]e of public authority.386 Most scholars also agree piracy has status as a jus cogens norm.387 All nations can enforce and punish pirates, wherever the culprits may be found and without regard to where the offense occurred.388 This allows states to determine the most appropriate way to exercise very broad enforcement jurisdiction. For the most part, states have exercised this jurisdiction exclusively through naval assets, such as warships and ocean surveillance aircraft. However, to stop modern piracy effectively, enforcement will have to operate more broadly against global criminal networks. Nations can use their universal jurisdiction to target the assets of those who direct and profit the most from piracy. Issuing letters of marque will help nations exercise their powers more effectively, while providing a compelling potential profit for privateers. Equally important, letters of marque enable enforcers to broadly target the pirate network kingpins, who have amassed fortunes. According to experts, [t]he commanders and generalsthe financiers and the organi[z]ers behind it allare in Dubai, Nairobi, Mombasa, and even Canada and London, sitting in their hotels, communicating via laptops, and making big money.389 These ringleaders have turned regional piracy into a global criminal enterprise and are conducting intelligence gathering in the heart of the shipping community and at the Suez Canal.390 They also have significant U.S. assets and are rumored to be wealthy and well educated.391 Observers suggest that current strategies, which focus on seagoing Somalis, neglect the leaders who command and control pirate operations.392 Intelligence officials have long known that Somali pirates
risen to the level of jus cogens, meaning that it is one of the very few peremptory normsalong with genocide, slavery, torture, and crimes against humanityfrom which no country may derogate. BOSELAW A. BOCZEK, INTERNATIONAL LAW: A DICTIONARY 20 (2005). 386. United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844). 387. RESTATEMENT (THIRD) OF FOREIGN RELATIONS OF THE UNITED STATES 404 (1986). 388. Id. 389. Andrew Cawthorne, InterviewSomali Pirate Kingpins Going Unpunished, REUTERS, Oct. 27, 2008, http://uk.reuters.com/article/idUKLR188693 (quoting Andrew Mwangura director of the East African Seafarers Association). 390. See Giles Tremless, This is Londonthe Capital of Somali Pirates Secret Intelligence Operation, GUARDIAN (London), May 11, 2009, http://www.guardian.co.uk/world/ 2009/may/11/ somalia-pirates-network (noting pirate spies have infiltrated shipping operations centers and government agencies). 391. Id. (interview with Yardimci shipping manager Haldun Dincel, who negotiated the release of his companys ship from pirates). 392. Ken Silverstein, Pirates and the CIA: What Would Thomas Jefferson Have Done?, HARPERS MAG., Apr. 9, 2009, http://harpers.org/archive/2009/04/hbc-90004751 (quoting a CIA official as saying, [w]e need to deal with this problem from the beach side, in concert with the ocean side, but we dont have an embassy in Somalia and limited, ineffective intelligence operations. We need to work in Somalia and in Lebanon, where a lot of the ransom money has
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do not randomly attack vessels in the Gulf of Aden and Indian Ocean; they rather select their targets via the help of a London-based consultant group.393 These international backers are largely responsible for the growth of piracy as they finance operations and provide logistical support. They also profit the most, taking the lions share of ransom payments. Over the past decade they have likely amassed hundreds of millions of dollars from ransom payments.394 Letters of marque would allow privateers to seize these assets, providing them with a lucrative incentive to attack the piracy problem at its root.395 C. Establishing a Framework for Letters of Marque and Privateers An effective solution must combine incentive strategies. To eradicate deeply entrenched pirate networks, each element must be neutralized. Rewards could be given for pirate skiffs seized, outboards destroyed, pirates captured, number of attacks prevented, and successful pirate prosecutions. This would encourage privateers to properly document their activities, gather evidence sufficient for prosecution, and treat pirates humanely. Land-based assets related to piracy, like the high quality fuel stored for pirate missions, powerful outboard engines, and the records of the pirate transactions at the pirate bourse in Haradheere, could be destroyed or seized for bounty. Finally, privateers might profit via military salvage after freeing a ship or crew after an attack. A broad multipronged approach is necessary to cripple the entire global piracy network and to provide adequate incentives for privateers. This strategy would be less costly than military interventions or allowing pirates to run amok. CONCLUSION The current system of using naval forces to combat piracy is costly, ineffective, and unsustainable. Although the international communitys response can be commended for its multilateral collaboration, the deployment of naval vessels is ill conceived and has been poorly executed. The predominant approach, which entails waiting for pirates to attack, letting them go when they are caught, and focusing on the prosecution of individual pirates rather than kingpins, does little to deter or disrupt pirate operations. The system
changed hands. But our operations in Lebanon are a joke, and we have no presence at all in Somalia.). 393. Somali Pirates Receive Tips from London, PRESS TV (May 11, 2009, 11:16PM), http://www.presstv.ir/detail.aspx?id=94399&sectionid=351020501 (quoting E.U. military intelligence document obtained by Spanish radio station Cadena SER). 394. For discussion of annual ransoms paid to pirates, see supra note 9 (estimating $30150 million paid annually); see also York, supra note 20 (observing pirates took $74 million in ransoms in 2009). Thus ransoms paid in the last decade likely totaled over $200 million. 395. Although universal enforcement jurisdiction exists, international obligationssuch as extradition agreements, principles of comity, and notions of state sovereigntycould limit the assets privateers could attack. States might also limit the use of letters of marque to instances where there is some nexus between the nation and the pirate assets.
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also forces individual governments to incur high costs while the shippers and insurance companies, who are best positioned to deter pirates at the lowest cost, continue with business as usual. Although scholars and advocates have contemplated various strategiessuch as ground intervention in Somalia, developing regional organizations, and arming merchantsthese proposals may be unattainable or have significant drawbacks. The fight against piracy need not be a quagmire. The international community can employ privateers through a legal and efficient letters of marque regime. Or, should the creation of a new international regime be too difficult or costly to organize, the United States can take effective actions to holistically dismantle pirate networks. Either way, a new strategy is necessary. Instead of concentrating on bringing minions-at-sea to justice, the strategy should focus on proactive, cost-efficient enforcement. Issuing letters of marque to a cadre of well-trained, disciplined privateers will enable the global community and the United States to achieve their strategic objectives. Privateers could proactively seize pirate assets and deliver the corsairs for lowcost regional prosecution under the SUA convention. From a military perspective, this would attain credible deterrence across broad stretches of ocean. Economically, it would increase the costs the enemy bears while reducing the costs of enforcement and prosecution. Further, the system could enhance rule of law by incentivizing enforcers to take action in ways that are transparent and humane. Technological advances, discipline, and strict supervision can overcome the accountability problems that undid earlier eras of privateers. Procedural and substantive requirements can direct the conduct of modern privateers by establishing means for them to profit from good behavior. Rewarding privateers for successful prosecutions and connecting them with ship-riders can ensure pirates are brought to justice efficiently. Under a domestic regime, privateers would be regulated by Congress, supervised by the Navy, and held accountable by American courts. Creating a letters of marque system that adequately incentivizes privateers to strike at assets most valuable to kingpins, while implementing controls to maintain high ethical conduct can provide longterm, sustainable deterrence. Letters of marque offer a solution that is legally viable, sustainable, and effective, as well as consistent with domestic or international law. The U.S. Constitution and the U.N. Convention on the Law of the Seas, often considered a constitution for the oceans, both contemplate and allow for letters of marque. The private market, acting under the authority and supervision of the government, can play a crucial, if not definitive, role in subduing piracy off the coast of Somalia. The time has come for the global community and Congress to consider utilizing this proven pirate-fighting tool.

Structuring A Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat The Somali Pirates, by Lieutenant Todd Hutchins

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Structuring A Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat The Somali Pirates, by Lieutenant Todd Hutchins

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Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates

Todd Emerson Hutchins*

CALIFORNIA LAW REVIEW

A SUSTAINABLE LETTERS OF MARQUE REGIME

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CALIFORNIA LAW REVIEW B. Prosecution and Deterrence

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