Academic journal article Texas Review of Law & Politics

Somali Pirates: An Expansive Interpretation of Human Rights

Academic journal article Texas Review of Law & Politics

Somali Pirates: An Expansive Interpretation of Human Rights

Article excerpt


Sometimes a complex issue can be captured in a few very simple words: "Prosecuting suspected pirates detained in international waters has proved difficult."1 And according to Douglas Burnett, an expert in maritime law, pirates are treated with a "catch and release philosophy that's usually reserved for trout."2 Indeed, despite the fact that there has been a considerable increase in piracy in the Gulf of Aden and Indian Ocean as of 2007-Somali pirates have taken hundreds of hostages, terrorized commercial and recreational shipping, and imposed a considerable economic burden on seafaring-the majority of pirates who capture hostages were paid off, and even when caught, they were not detained or prosecuted.3 Few pirates have been confronted and killed.4

These observations are puzzling, given that piracy has been considered for centuries a very serious offense by most, if not all, nations and pirates were regularly killed or executed after, at most, a rather perfunctory hearing by the captain of the ship that captured them. As is often the case, more than one factor helps explain these observations, such as the vastness of the area involved. This Essay focuses on one set of factors-the effects of the interpretation of the human rights extended to pirates in recent decades.

The main thesis of this Essay is that the human rights extended to these pirates were at least initially interpreted in such an expansive way that they prevented proper attention to two basic common goods: the safety and livelihood of civilians and the right to freedom of navigation in international waters. In this way, the expansive interpretation of human rights violated what responsive communitarians consider a legitimate balance between rights and public safety.5 Moreover, this interpretation of human rights undermines the rights' normativity.

In effect, one can see a parallel between the expansive interpretation of human rights in the case at hand and the expansive interpretations of individual rights in the 1980s. In the 1980s, following vastly overdue and highly justified extension of de jure and de facto rights to minorities, women, handicapped persons, and others, came some trivial extensions of rights that undermined their standing. Telling examples include the claim that the right to play Santa Claus was violated by Macy's when it refused to re-engage a person who had previously played Santa Claus but had started taking psychotropic medications.6 And, in Santa Monica, a feminist argued that a city ordinance limiting restroom use to the gender noted on the restroom door- unless there were more than three people in line in the women's restroom, at which point a woman could use the men's room-infringed on women's rights, for it restricted their ability to use any bathroom any time.7 At that time, Mary Ann Glendon's book Rights Talk spelled out the damage caused by excessively expanding the otherwise cardinal and valuable precept of rights.8 The key argument here advanced is not that pirates are without rights but that the interpretations of these rights have been expanded to the point that it undermines the rights of all other persons and corrodes the rights themselves. Additionally, the rights enjoyed by pirates must be balanced against concerns for the common good.

Others have called attention to the expansive interpretations of pirates' rights and the antisocial results. Eugene Kontorovich, a law professor at Northwestern University, wrote:

While international law has developed to include many new crimes, the successful prosecution of piracy has grown more difficult than it was in the age when ships were powered by sails. Although international law obligates nations to repress piracy, many legal rules, practical constraints, and other considerations pull states in the opposite direction.9

Others have called the treatment of pirates' rights the equivalent of granting '"a get out of jail card. …

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