Kiobel Postscript

Further to my earlier analysis here, there was one other remarkable detail in the U.S. Supreme Court’s recent decision in Kiobel. Although, the opinion in Kiobel was devoted to the application of the Alien Tort Statute, it injected some confusion into a strictly piracy matter. Citing to Blackstone’s definition of piracy the court majority noted, “the offence of piracy by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to a felony there.” This is an outdated definition of piracy inconsistent with the law of nations. The 4th Circuit Court of Appeals has held in two recent opinions that piracy does not require an intent to rob (animus furandi) because the piracy statute 18 USC 1651 incorporates modern developments in “the law of nations” including the customary definition of piracy in Article 101 on the UN Convention on the Law of the Sea. Only a few months ago, the Supreme Court declined to hear these two cases, thereby taking no view on whether the definition of piracy has been updated by modern developments. By now citing to Blackstone’s definition in the Kiobel opinion, however, the court has muddied the waters.

Piracy – Not just Kiobel’s Analogy

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

Private Security Guards

Cross-posted at international law girls.

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers.

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings.

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity.

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.

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”.

From New Delhi to Rome (and Back) via Hamburg or The Hague: the Enrica Lexie Incident and the UNCLOS Dispute Settlement Mechanism

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The recent decision of the Italian Government not to return two Italian marines to India for trial in connection with the killing of Indian fishermen is heightening tensions between Italy and India and is spawning an international diplomatic fallout. Since its inception, the case attracted much debate and conjecture, both by the media but also by specialized political and legal commentators. We have provided our point of view, for instance here and here. In essence, Italy and India disagree on who has jurisdiction to try the Italian marines. Each of their respective arguments is premised on international law, notably the United Nations Convention on the Law of the Sea, as well as municipal law. India contends that it has jurisdiction to try the marines because (1) the victims were Indian nationals, (2) the victims were killed on an Indian ship and (3)  the incident occurred within India’s Contiguous Zone, which extends beyond its territorial waters. For its part, Italy claims it has jurisdiction to try the pair because (1) they are Italian citizens; (2) they were deployed as a Vessel Protection Detachment on the Italian ship Enrica Lexie and (3) the incident occurred within international waters. Worthy of note is that both countries, separately but concurrently, have indeed initiated criminal proceedings against the marines before their internal judicial systems.

Recently, the Italian government formally clarified that since the issuing of the Indian Supreme Court decision in January 2013 in this matter, indicating that the marines shall be tried by a special chamber set up within the Indian judicial system, it has pursued the cooperation of the Indian government under Articles 100 and 283 of UNCLOS for a settlement of this matter under international law. From a formal point of view, therefore, the actions of the Italian government are an attempt to bring the question of which State has jurisdiction to try the marines within the legal framework of UNCLOS provisions related to the settlement of disputes.

UNCLOS builds on the commitment by all United Nations Members States to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. In particular, one of the main characteristic of UNCLOS and its dispute settlement system is the possibility for a State Party to unilaterally trigger the compulsory and binding jurisdiction of certain judicial institutions for the resolutions of such disputes. Given UNCLOS comprehensive reach, the range of controversies subject to resolution varies, and includes issues relevant to seabed and maritime delimitation, navigation, fisheries and the environment, etc.

Part XV of UNCLOS requires States Parties to first attempt to settle any dispute between them by peaceful means and seek a solution in compliance with the United Nations Charter (Articles 279-280). Importantly, States Parties can agree to seek the settlement of the dispute by peaceful means of their own choice (Article 281), including recourse to general, regional or bilateral agreements (Article 282). Parties also have an obligation to exchange views on the possible settlement (Article 283) and can decide to submit the dispute to a non-binding conciliation (Article 284). Where, however, no settlement has been reached, UNCLOS stipulates that the dispute must be submitted at the request of either party to the dispute to a court or tribunal having jurisdiction in this regard (Article 286). The relevant rules contained in Part XV of UNCLOS are quite complex and foresee the possibility of seeking relief before different fora, depending on the subject matter of the controversy, also setting forth a series of exceptions and opt-outs. With regard to controversies akin to that concerning the Enrica Lexie incident, Article 287 of UNCLOS defines available courts or tribunals as the International Tribunal for the Law of the Sea, in Hamburg (ITLOS), or the International Court of Justice, in the Hague (ICJ). In ratifying the UNCLOS, Italy already declared its acceptance of the jurisdiction of either of these institutions as binding, while India reserved its rights to any such declaration. Alternatively, the parties might choose to refer the unsettled dispute to an ad hoc arbitral tribunal. A Party to a dispute not covered by a declaration in force shall be deemed to have accepted arbitration.  If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, this may be submitted to arbitration unless the Parties otherwise agree. Finally, any decision rendered by a court or tribunal having jurisdiction over the dispute shall be final and shall be complied with by all the parties to the dispute (Article 296).

Arguably, the positions of the two States on this matter have not been more discordant. Italy’s sudden decision not to return its marines to India is premised on a change in circumstances following the perceived lack of cooperation by the Indian authorities in resolving the dispute in accordance with international law. This in itself is considered by the Italian government as a dispute on the scope of application of UNCLOS. The Indian government, on the other hand, has reacted strongly and called the Italian decision “unacceptable”. The Indian Supreme Court is currently precluding the Italian Ambassador, who acted as a guarantor for the return of the marines to India, from leaving the country. While it is unclear whether the Italian Ambassador has any immediate intention to leave India, the Indian Supreme Court should be cognizant of the Vienna Convention on Diplomatic Relations (1961) which provides in Article 29 that the person of a diplomatic agent shall be inviolable. The Indian Supreme Court appears to misconstrue the Italian ambassador as a personal guarantor for the return of the marines, rather than a diplomatic agent of the Italian government. The two states maintain irreconcilable positions. India needs Italy to return the marines back on its soil to eventually commence a meaningful trial before its courts, while Italy needs India to comply with its international rogatory requests to complete its investigations into the matter, thus relaxing the jurisdictional dispute by bringing the marines to trial before its own courts.

ITLOS sits in Hamburg - Is the Enrica Lexie Case on its way there? Courtesy ITLOS

ITLOS sits in Hamburg – Is the Enrica Lexie Case on its way there? Courtesy ITLOS

The recent adjudication by the International Court of Justice in the Hissène Habré case provides useful guidance on the expected complexities of instances where the Parties cannot agree to settle their differences. The judgment of the Court in this case, particularly the findings concerning its admissibility, reveals several years of diplomatic exchanges between Belgium, which petitioned the Court, and Senegal, which was accused of neither prosecuting nor extraditing Mr. Habré, the former President of Chad, based on violations of the Convention Against Torture. The ICJ decision in Habre includes, in the first place, lengthy discussions on whether a disagreement occurred among the Parties, whether this could not be settled by them and whether the jurisdiction of the Court had been triggered.

Paradoxically, the divergences between Italy and India might facilitate recourse to compulsory jurisdiction with ITLOS or the ICJ. The route between New Delhi and Rome in the resolution of the Enrica Lexie incident therefore might  pass through Hamburg or The Hague. The voyage is far from clear and it will continue to be a perilous one.