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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Wednesday, November 26, 2008

Is International Law to Blame for Piracy?

Pirate_flagWell, it's a bit of a stretch, but treaties are just contracts between states, so it's close enough for a day-before-Thanksgiving post. The Wall Street Journal is on a campaign to convince the world that international law is to blame for the sudden rise in piracy off the coast of Somalia. Last week, it was David Rivkin and Lee Casey blaming international human rights "scolds" for our wimpy response to the Somali pirates. "Why Don't We Hang Pirates Anymore?" Bret Stephens asks in yesterday's Journal. The answer, according to Stephens, is that it is all the fault of the U.N. Convention on the Law of the Sea (UNCLOS), Article 110 of which, according to Stephens, "enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates." He neglected to mention that the boarding party must also offer the suspected pirates tea and scones.

But here is the relevant text of Article 110:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship . . . is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy . . . .

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

I don't know why Stephens insists on reading Article 110(2)'s "may" language as a "shall" or a "must." I can't find anything in UNCLOS that would justify Stephens' reading of what is required under international law when one engages pirates. And of course, even if Article 110 did prohibit firing on suspected pirates based on reasonable suspicion (and I do not believe that it does), that provision could be overridden by treaty. So the real question is why states have not developed a more muscular policy for dealing with Somali pirates.

[Jeremy Telman]

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