Cambridge University Press Publishes “Prosecuting Maritime Piracy”

CUP Piracy Book

Professor Milena Sterio with a newly published copy of “Prosecuting Maritime Piracy”

Cambridge University Press just published a new collected volume on maritime piracy.  “Prosecuting Maritime Piracy: Domestic Solutions to International Crimes” (edited by Michael P. Scharf, Michael A. Newton and Milena Sterio) contains thirteen chapters.  The first four chapters (by Sandra L. Hodgkinson, Ved P. Nanda, and Milena Sterio) focus on the definition of the crime of piracy and issues related to universal jurisdiction over the piracy offense.  The next four chapters (by Laurie R. Blank, Mark V. Vlasic and Jeffrey Paul DeSousa, Frederick Lorenz and Laura Eshbach, and Milena Sterio) focus on the pursuit, arrest, and pre-trial treatment of suspected pirates.  The next three chapters (by Frederic Lorenz and Kelly Paradis, Michael A. Newton, and Jon Bellish) focus on legal issues in domestic pirate trials.  The last two chapters (by Eugene Kontorovich and Yvonne M. Dutton) discuss the sentencing and post-sentence treatment of convicted pirates.  The Introduction and Conclusion were contributed by Michael P. Scharf.

Happy reading!

Forthcoming article on private security

Yvonne Dutton, an Associate Professor of Law at Indiana University Robert H. McKinney School of Law (not to mention a friend and colleague), has a law review article forthcoming in the Duke Journal of Comparative & International Law on regulating the private maritime security industry. Here’s the abstract:

Since only mid-2011, states have increasingly authorized their shippers to hire private armed guards to protect them as they travel through pirate-infested waters. Estimates indicate that in 2011, the percentage of ships employing armed guards rose from approximately 10% to upwards of 50%. Primarily, the guards are hired out by the 200 to 300 private maritime security companies (PMSCs) that have been created overnight to capitalize on this new opportunity. This article recognizes the importance of protecting innocent seafarers from violent pirate attacks. It also recognizes that the worlds’ navies may not be able to protect each and every ship and crew from being attacked. Nevertheless, it argues that states should not be permitted to include private citizens in the fight against piracy without first ensuring that those guards will abide by governing laws and norms and be held accountable should they fail to do so. Yet, as the article shows through a comparison and analysis of the laws and guidance of five states, only some states appear to be providing any guidance regarding the necessary training and qualifications that armed guards must possess or how and when they may lawfully use and transport weapons. This article argues that states need to do more. At the very least, it urges states to agree on vetting and monitoring procedures to make certain that any guards who are hired by shippers are well trained and prepared to safely transport, store, and use weapons. States are responsible for the fight against piracy, and if they want to include private contractors in that fight, then they should act responsibly and regulate and monitor the guards’ conduct. Otherwise, in a world where each state is creating its own rules or even no rules at all, the likely outcome is chaotic and violent seas — and perhaps the next “Blackwater” moment.

The full article can be accessed here.

Book Review: The Pirate Organization – Lessons from the Fringes of Capitalism

The Pirate Organization_Cover_Harvard Business Review Press

What do the following have in common: the pirates of the high seas, the pirates of the radio airwaves in post-World War II’s Britain, as well as modern day internet cyberpirates and DNA bio-pirates? and how do they affect capitalism?

In “The Pirate Organization – Lessons from the Fringes of Capitalism”, Rodolphe Durand and Jean-Philippe Vergne take us beyond the traditional idea of pirate as solitary anarchists hunting down capitalism and argue that they all share a consistent series of traits, roles, tactics and goals which bring them to organize into groups, ad hoc communities where “alternative norms of social interaction and economic exchange are designed” and ultimately spread across a broader social realm. More importantly, despite their shorter life-expectancy, these “pirate organizations” manage to profoundly alter our society, particularly through their impact on today’s capitalism, driving its growth and evolution.

“The pirate organization is a social group that controls people, resources, channels of communication, and modes of transportation (for people, goods, capitals, or just information). It maintains trade relations with other communities, other groups, sometimes other states, and often legitimate companies. To reach its goals, it develops new strategies that favor speed and surprise. Its goal is to adapt and improvise, to develop the appropriate means to deal with its enemy. In order to protect itself, it operates from hidden locales outside a sovereign territory. To grow, it appeals to a desire for discovery; it seeks to control parts of a territory and claims certain rights to it. To attract recruits, it plays up its outsider status, and it makes change seem possible.  As long as the state strengthens its hold on norms, the pirate organization is ensured a flood of new members who feel marginalized by society.”

The Pirate Organization explores the quasi-symbiotic, often conflicting relationship between the pirate organization and capitalism. It takes us on a journey through unchartered territories, be it the high seas, the radio waves or internet and DNA. From the advent of the sovereign state to globalism, piracy has proven to be a transcendent force and the pirate organization has thus become a necessary counterpart to capitalism.

“Are pirates simple bandits or counterfeiters? Enemies of humanity? Defenders of a public cause? Agents of capitalist normalization? Oftentimes, they are all those things together.”

The Pirate Organization does not attempt to trivialize piracy or portrait pirates as heroes of our society acting as seeming iconoclasts of the wrongs of capitalism. It focuses on those pirate organizations pursuing novel, at times radical, values which impact on the norms of a society. Thus, it excludes modern day Somali pirates, in light of their violent banditry and merely profit oriented business model. The opposite interpretation, however, could also be true. Albeit unwittingly, pirates in Somalia exposed a lacuna in the implementation of the Convention on the Law of the Sea and in the framework for the prosecution of piracy at the national level. They drove the international community, in attempting to mitigate piracy impact on global trade, to initiate a comprehensive process of judicial reform and inter-state cooperation.  They also confirmed the frailties of failed States and their effect on local communities which will hopefully encompass more inclusive social and economic reform at both the national and international level. In the words of the authors, “piracy is not random. It is predictable. And it cannot be separated from capitalism”.

Review: War by Contract – Private Contractors in the Fight Against Piracy

War by Contract – Human Rights, Humanitarian Law, and Private Contractors, Eds. Francesco Francioni and Natalino Ronzitti

Considering the increasing magnitude of maritime piracy, and the resulting growth of the private security field, it is surprising that very little in the legal literature has addressed the convergence of the two. In his article, The Use of Private Contractors in the Fight Against Piracy: Policy Options, Professor Ronzitti provides a unique survey of the legal implications of employing private contractors on maritime vessels.  It appears in War by Contract, analysing the legal regime applicable to private military and private security companies (PMSCs), including the Geneva Conventions and Human Rights Law. The article is a meaningful and necessary first step in such an analysis. But by answering the most pressing questions, it raises yet others.

The analysis is most relevant to the shipping industry, in particular, shipping companies, ship-owners and their insurers. Ronzitti briefly addresses an array of mechanisms available to shippers in order to safeguard the passage of their goods through pirate infested waters, both territorial and international. Among those options are pirate hunting by PMSCs; self-defence by seafarers; employing armed guards; detachments of armed soldiers employed by national militaries; the practice of escorting merchant vessels by military vessels; dispatching security teams from land bases and policing territorial waters.

Ronzitti bases his analysis mainly on the language of international treaties and the interpretation thereof by resort to recorded statements during their negotiation. For example, in the case of perhaps the most controversial topic, pirate hunting (i.e. hiring of PMSCs to pursue and capture/kill pirates), Ronzitti notes various maritime law treaties, including the 1958 Convention on the High Seas which provides in Article 21, “A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect.” He concludes that pirate hunting may be legally permissible if the vessel is on government service, authorized to chase pirates, and the hiring government bears international responsibility. However, he states that no practice of this kind currently exists.

Ronzitti asserts that the use of private contractors is, under appropriate conditions, legally permissible for each of the mechanisms considered. At the heart of his analysis is the concept of self-defence. Although some have suggested that ships possess a right of self-defence embodied in Article 51 of the UN Charter, such a right only applies to states.  Alternatively, Ronzitti suggests what permits ships to take action against pirates attacking them is “the right of self-defence of human beings, a right which is recognized by all legal orders of the members of the international community.”  The reference here is to the ICJ Statute, Article 38(1)(c), naming as a source of international law “general principles of law recognized by civilized nations.”

The basic principle of self-defence in that one may protect oneself against threats to one’s life by resort to force may be relatively uncontroversial. But Ronzitti takes the principle further stating, “Usually domestic legal orders recognize not only the right of self-defence but also the consequential right to take into custody the aggressor for the short span of time necessary for handing him over to the police authority” and further that the right of self-defence includes the right to intervene on behalf of a threatened individual.

However, there are differences between legal orders as to the proper scope and application of the principle of self-defence. For example, how much force is permissible? Must it be shown that there was no possibility of escape to justify the use of force? In addition, it is at least debatable whether the principle of self-defence would encompass the concept of “citizen arrest” by a merchant marine vessel.

Finally, what legal orders would be controlling here? If a death is to occur at sea as a result of piracy, jurisdiction to prosecute such a crime may be limited to the flag state, victim or defendant’s state. However this does not mean that the applicable substantive law should derive from the prosecuting state rather than international law. The ICJ suggests in the North Sea Continental Shelf case that in ascertaining general principles of international law, reference should be made predominantly to states with an interest in developing relevant practices. For example, in ascertaining the law applicable to the continental shelf, reference should be made to the practice of coastal nations. However, in the case of the basic concept of self-defence, most if not all legal orders have had an interest in developing the law on this topic. In ascertaining the bounds of the general principle of self-defence, the collection of states selected to evaluate state practice will determine its permissible bounds. One might also reference sources of customary international law such as Article 31(1)(c) of the Rome Statute (defining self-defence). The point is that it is an open question as to how the principle of self-defence would be defined and applied in the maritime piracy context.

In the end, Ronzitti’s analysis suggests that arming guards aboard ships has been made necessary and is legally permissible within certain bounds. He suggests that further regulation should be applied to conform the practice to international norms. However, the basic countervailing concern here is that it will lead to an escalation of violence by pirates. The International Maritime Organisation (IMO) has indicated the success-rate of pirate attacks in the Gulf of Aden has fallen from 50 percent to less than 20 percent this year. As a result,

“They [pirates] have become more aggressive, audacious and better organised.” This view was echoed by International Maritime Bureau director Captain Pottengal Mukundan, who said, “Attacks off the coast of Somalia have been characterised by a greater degree of violence against crews than before.”

Although legally justifiable in appropriate circumstances, the use of PMSCs will inevitably lead to more violent and deadly clashes with pirates.