What's in the news?

It's not often that so many of my interests converge in such a neat package - legal technicalities, maritime history AND high seas mayhem! 

"Who's a Pirate? In Court, a Duel over Definitions" http://online.wsj.com/article/SB10001424052748703988304575413470900570834.html?mod=WSJ_hp_editorsPicks_3

So I have to link it!

I think they could have said more about WHY it's important to define piracy clearly: it has to do with the idea of jus cogens, or a peremptory norm - a norm so universally recognized that it requires no treaty to be enforced or enforceable; a deep ancient law that lies in the very foundations of international relations and CANNOT be undermined or derogated by treaty or agreement. An absolute prohibition of piracy is one of those norms (along with prohibitions on genocide, slavery, and invasion). 

This doesn't mean that all nations don't engage in piracy, but that pirates are outside of any nation's particular jurisdiction. In effect, this means any nation can seize, capture, try, condemn and execute pirates, regardless of the pirates' citizenship. Supposing for a moment that Somalia had a functioning government capable of diplomatic relations - the US (or any other nation) would still not need to seek Somali consent to arrest Somali pirates. But if it turned out they were just fishermen rather than pirates, then seizing them on the high seas would probably be a violation of Somalia's sovereignty. 

It's such an interesting, wonderful area of the law. But that's why it is important to define piracy precisely. The UN Convention on the Law of the Sea, Article 101, gives a good definition: pirates are those who 1) commit "illegal acts of violence or detention, or any act of depredation" 2) on the high seas, 3) in private vessels for private (not national) gain. This means that coastal robberies are not piracy, and military exercises are not piracy; and privateers are also probably (but not definitely) not piracy. 

The US has not ratified the UNCLOS, but everyone else has; and since Reagan the US has "recognized" it as international law (weird, yes) - least to the point where that it should count as the "law of nations" for definitional purposes. You see here that the prosecution is arguing that UNCLOS applies, but the defense is saying it doesn't. The prosecution seem to me to have the better argument. The "law of nations" IS the UNCLOS, at this point. 

But if that's the case, I'm wondering why they're not talking about the location of the act of piracy - under the UNCLOS definition it has to be done on the high seas or "in a place outside the jurisdiction of any State." Were these Somalis in their little skiff actually outside the jurisdictional waters of any State? Arguably, that would have to be over 200 nautical miles from the coast. A legitimate question, I think! Or at least one that the reporter could have (and should have!) easily addressed. And more significant than the question of whether the putative pirates engaged in "any act of depredation" ...