New Facilitators Paper Available on SSRN
March 4, 2013 Leave a comment
After months of blogging about a high seas requirement for facilitators of piracy, I have posted a law review article on SSRN. Here is the abstract:
Around 2005, maritime piracy began to make a troubling resurgence three quarters of a century after consensus had been reached that the age of piracy had “permanently ended.” It returned, however, in a slightly different form, with pirates relying much more on land-based facilitators than did their historical counterparts. Maritime piracy’s renaissance made pressing the question of whether an inciter or intentional facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This article undertakes a thorough analysis of the text, statutory context, drafting history, and policy impetus behind UNCLOS art. 101 as it relates to universal jurisdiction over facilitators. It finds that the preponderance of the evidence suggests that a high seas requirement in fact exists for facilitators of piracy jure gentium. From there, the article considers the likely implications of such a requirement on modern facilitators of maritime piracy. Through the lens of political economy, the article concludes that universal jurisdiction piracy prosecutions pose something of a commons problem or, alternatively, a public goods problem. Because rational actors operating in a market tend to internalize externalities and under-produce public goods, theory suggests that universal jurisdiction prosecutions should be quite rare. The article goes on to find that state practice shows such prosecutions to be quite rare in fact. The article thus concludes that there is a high seas requirement for inciters and intentional facilitators of piracy jure gentium, but that this requirement will have few practical implications on impunity for facilitators.
The full article can be accessed here. Any substantive criticism is most welcome at jonbellish at gmail dot com. For those interested an another well developed take on the issue, I invite you to have a look at Roger’s piece, which is forthcoming in the Florida Journal of International Law.
In other piracy-related news, the Ashland defendants were convicted in a Norfolk federal district court.