Universal Jurisdiction and the Pirate: Time for an Old Couple to Part
Goodwin, Joshua Michael, Vanderbilt Journal of Transnational Law
For hundreds of years, the world has allowed any nation-state to exercise universal jurisdiction over high seas piracy. This has been recently codified by the United Nations in the Convention on the Law of the Seas. It has been almost universally assumed that allowing states to do this was legitimate. As this Note will argue, however, the reasons for allowing states to exercise jurisdiction in this way no longer make sense in the modern world. Further, allowing states to exercise universal jurisdiction over pirates violates the due process rights of the pirates and poses a threat to international stability. To address these concerns, this Note proposes prohibiting states from exercising universal jurisdiction over pirates and instead requiring that states wishing to exercise jurisdiction over pirates base that jurisdiction on a more traditional jurisdictional form.
TABLE OF CONTENTS I. INTRODUCTION II. PIRACY'S HISTORY A. Piracy in the Ancient World B. Piracy from the Sixteenth to the Early Eighteenth Century C. Modern Piracy D. Summation III. VIEWS ON JURISDICTION AND PIRACY A. Bases of Jurisdiction B. Reasons for Applying Universal Jurisdiction to Piracy 1. Statelessness 2. Pirates are Hostis Humani Generis 3. Heinousness 4. Uniform Punishment 5. Narrowly-Defined Offense 6. Piracy Directly Threatens or Harms Many Nations 7. Summation IV. WHY UNIVERSAL JURISDICTION AS APPLIED TO PIRACY SHOULD BE ELIMINATED A. Potential to Cause International Tension B. Violation of Notions of Due Process V. SOLUTIONS A. Retain the Status Quo B. Creation of an International Piracy Regulatory Regime C. Rely Solely on Other Forms of Jurisdiction VI. CONCLUSION
On November 5, 2005, a band of pirates attacked the Seabourn Spirit, a luxury cruise liner, 100 miles off the Somali coast. They attacked from a small boat with grenade launchers and machine guns. (1) The attack caught the world's attention and prompted several questions. What can be done about piracy in general, and how can it be stopped? How can the pirates that attacked the Seabourn Spirit be found and captured? Who should be responsible for finding and capturing them? And once a country does find and capture the pirates, how should it punish them?
Throughout history, scholars and politicians have attempted to answer the question of how to stop piracy. (2) Yet, piracy remains a problem. Unfortunately, piracy is likely to continue to be a problem for the foreseeable future. While unable to solve the piracy problem in general, politicians and scholars seem to agree about who can capture and punish the pirates. If a country finds the pirates within its territorial waters, it can capture and punish the pirates under its municipal law. On the high seas, any country may capture the pirates and punish them according to the capturing country's laws. Thus, if the Brazilian Navy found and captured the Somali pirates on the high seas despite no obvious connection between Brazil and the pirates or the cruise ship, Brazil could capture the pirates and subject them to Brazilian law. This concept is known as universal jurisdiction, and it is this Note's focus.
According to some legal scholars, universal jurisdiction is a deeply entrenched exception to the norms of international jurisdiction that has developed over the past several hundred years. (3) The concept of universal jurisdiction has been codified in the U.N. Convention on the Law of the Sea (UNCLOS).
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship.... The courts of the State which carried out the seizure may decide upon the penalties to be imposed.... (4)
Under this article, if a pirate from country A attacks a vessel from country B on the high seas, country C has the right to capture the pirate, subject him to country C's laws, and punish him according to those laws. …