Comments on: Shiver Me Timbers! Thar Blows Universal Jurisdiction!!

By: Sean Scott Maguire

Sean Scott Maguire — Wed, 29 Apr 2009 21:11:38 +0000

I blogged about this and also linked to this article. John Bellinger was on the Diane Rhem show and kept on saying that there is no legal stucture to deal with pirates once they capture them. I pointed out that there is universal jurisdiction, and that we can just bring them home and put them on trial like any other criminal. His response was something like “yes, in theory, but then he’ll claim asylum.” Having practiced asylum law, this struck me as pure fantasy, but they cut me off before I could respond to that. Why are they so dead set against prosecuting pirates?

By: megan

megan — Wed, 10 Dec 2008 21:48:33 +0000

Mine is more of a question than a comment… You said that:
“When piracy takes place on a flagged ship, as is usually the case, that ship is considered the sovereign territory of the country which flagged it…”

Is this based on customary international law or is it codified in a treaty like UNCLOS?

By: Daniel Reisner

Daniel Reisner — Tue, 25 Nov 2008 11:58:45 +0000

Dear Clif.
I have been following your blog with great interest for some time, but this is my first opportunity to perhaps contribute something.
I generally agree with your analysis but would add the following:
In international law, piracy is often viewed as one of the “founding fathers” of the concept of universal jurisdiction, predating war crimes and crimes against humanity.
However, the fact that states are entitled to enforce universal jurisdiction over pirates and their vessels has not been left to the realm of general uncertainty often characterizing international law issue, but was specifically “legislated” in two international conventions.
The first – the 1958 Convention on the High Seas includes, in articles 14-21, specific anti-piracy provisions (including a definition of piracy), which include the right of seizure, arrest and trial of all terrorists by the State of the vessel effecting the arrest.
Similar provisions are included in the later 1982 Convention on the Law of the Sea (Articles 100-107 and 110).
And while it is true that the US has not ratified the 1982 convention (for other reasons related to the provisions of the convention in relation to the harvesting of natural resources) the US has indicated that it does accept most, if not all, of the other provisions of this convention.
In addition, and most importantly, the US ratified the 1958 convention in 1961. Unless I’m mistaken, doesn’t that means that this convention has become part of the “law of the land” in the US and therefore could, in and of itself, serve as a basis for criminal proceedings in US courts?

By: Mike Deal

Mike Deal — Thu, 20 Nov 2008 13:25:21 +0000

Whether the U.S. has jurisdiction over non-nationals for piracy committed against non-nationals and/or use military or naval force against such pirates was settled by the US Supreme Court early on in U.S. v. Smith. As to the use of force, the majority held that use of force against non-state actors engaged in piracy was a “non-public war”. Critical to the Court’s decision was the concept that piracy was a crime defined by the Law of Nations. One could very well say the same about use of force against terrorists,i.e., non-state actors who do not meet the criteria of being considered lawful combatants (inter alia, carrying arms openly, wearing uniforms or identifying symbols who use force against innocent civilians. British common law courts treated the British navy’s apprehension of slave ships similarly in the 19th century.

By: Jairo

Jairo — Thu, 20 Nov 2008 03:08:01 +0000

Now I understand why these guys have no clue on this issue, as the newspaper notes:

“Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.”