Arrrggh!!! Pirates (And The Law)

There Be Brigands On The High Seas, And Maritime Law Is Pretty Helpless To Stop Them

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Jon Stewart’s hilarious parody aside, there is nothing funny about what is happening to those poor commercial sailors in the Gulf of Aden. They are being attacked with alarming frequency by modern-era pirates.

Just take a glance at the Weekly Piracy Report from the International Chamber of Commerce - dozens and dozens of attacks this year - and you know that last week’s news boomlet about brigands isn’t just your typical post-election shark-like hype.

Beyond the jokes and the stereotypes, beyond the terror and the hostages, there is a swirling, circular legal canopy caused by the new rise in piracy, and on it is written a series of diplomatic, military and political disputes stirring angst among vast shipping enterprises, huge insurance companies, and various naval forces in that under-noticed area of the world.

Don’t laugh - those missile-packing gunmen in their creepy leisure wear are going to have an impact on your wallet.

I remember two things about international law from law school. The first is that my professor looked like the captain of the Titanic or Sean Connery circa “The Hunt for Red October.”

The second is that international law very rarely provides an easy or quick solution to disputes that having anything to do with what are still known as the "High Seas." For those of you new to Piracy Law, High Seas are open waters beyond the legal and territorial jurisdiction of any country. They are supposed to be free to all whom come for peaceful and legal reasons.

The shipping and insurance companies, naturally, want the U.S. or Indian navies to increase their presence in the Gulf, ward off the pirates, and protect valuable shipping lanes. Otherwise, they say, they’ll have to hire security guards, increase their own patrols, and ultimately force those new costs down to their customers.

The insurance companies, meanwhile, are talking about increasing the size of the “war-risk zone” to include that area. That would mean higher insurance premiums for the companies running their vessels through the Gulf. And guess where high premiums ultimately end up?

The governments involved, including ours, have been sympathetic but not terribly aggressive. The Associated Press reported last week that a “multicoalition naval force has increased patrols in the region,” and an Indian naval vessel actually sank a suspected pirate ship last Wednesday.

But the AP also reports that 21,000 ships pass through the Gulf every year and that the U.S. Navy concedes that it does not have the assets to “be everywhere with every single ship.” A little over two hundred years after our big battle with the so-called Barbary Pirates, we are not quite ready to open up a new front against “terrorism” of a different sort.

And no one can really make us. Nothing in international law requires a nation to protect private interests beyond territorial waters. The “norm” around the world does not force governments to spend military assets acting as Sheriff of the High Seas. These robbers, the ones hijacking oil tankers, are robbing in a jurisdiction more like the Frontier West, where marshals were scarce and posses only sometimes got their man.

I don’t see our military leaders deciding anytime soon to make anti-piracy a tactical priority. I don’t see President Obama declaring war on African pirates to protect Chinese shipping companies.

So what’s going to happen? In the short run, things will continue to be a mess. The companies are going to better protect their vessels - at a reported cost of roughly $60,000 per journey. There are going to be “private” battles between the pirates and mercenaries hired by the shipping companies. There will be political and diplomatic pressure brought to bear upon cash-starved Egypt, which charges $200,000 per vessel for access to the Suez Canal.

There will be pressure placed upon chaotic Somalia, too, which by all accounts is the root cause of the tide of piracy. But the piracy will continue. People will be killed. The Indian and American navies will continue to score the occasional take-down of a pirate ship. The insurance industry will push to expand that war-risk zone so it can charge higher rates. And there will be dense, technical, maritime-type lawsuits - wave after wave of them - until some sort of calm returns to the Gulf of Aden.

Let me put it this way: If you are wondering what Johnny Depp’s next project will look like, think “Jack Sparrow” meets “The Verdict” and you may have a good idea. And it might also be a good idea to know when “Talk Like a Pirate Day” is.

[ausus-2009]

stevador39,

Ausus is not a lobbyist for anyone. He is a former journalist and newspaper editor who has traveled widely and would not want to be on a ship captured by pirates. As a journalist, he remembers when terrorists boarded a cruise ship and killed one of the passengers who happened to be a US citizen.

Of course the answer to avoid pirates is to abandon ships and freight everything by air. Of course it would make a nasty carbon footprint.

[jsd330]

Gee sombody else asking for a government bailout. Hell we might as well bail the shipping company''s out, we bailed out the pirates on wall street.

[emperorlotku]

Take a squadron of fighter jets up and down the Somalia coastline. Blow everything out of the water that floats. Go back a few days later to get the ones we missed. Purge Somalia of floating vessels on a weekly basis for a few months and we will get rid of the pirates. If the local population can''t fish for a while maybe the pirates won''t have that Robin Hood appeal anymore.

[gmcnally2]

So why dont they just stay within 12 nautical miles of the shore and make it a problem for the sovereign nation whose waters they are traveling through?

[zoopster1]

Unless I miss my guess, the old policy (read: 17-19th century) regarding piracy on the high seas was also to let the private companies handle defense of their shipping against pirate attacks, but they still had to deliver any pirates captured alive to their governments for trial. Of course, for those pirates who survived to be tried, a government charge of piracy usually implied a death sentence anyway.

As far as I know those laws are mostly still in place, so maybe if we''re lucky we will see dead pirates hanging from Boston Common soon. One can only hope.

[stevador39]

Could ''ausus'' be a propagandist for the insurance companies or a lobbyist? The United States'' taxpayer does not need to be burdened with patrolling the world''s oceans.

[ausus-2009]

MikeTotten1,

We all have a pirate problem. Their activities will be reflected in higher costs of goods and higher costs of insurance. I just hope it is not one of your relatives murdered if pirates take a cruise ship.

One of America''s first acts after independence was to clean up the pirates because the European powers were too busy fighting among themselves.

[ausus-2009]

While many would argue that had the US not been distracted in Iraq and Afghanistan it might have been able to handle the pirate problem, it just goes to show how useless the UN and other international groupings are.

It appears if the US does not clean up the pirate problem, nobody else will.

[nybras]

Everyone ignored this problem from the early 80''s and let it get out of control. If they had WMD''s aimed at the oil bought for us by Somalia we would do something about it.

Interesting thing is there seems to be no pirate recession.

[nybras]

Everyone ignored this problem from the early 80''s and let it get out of control. If they had WMD''s aimed at the oil bought for us by Somalia we would do something about it.

Interesting thing is there seems to be no pirate recession.

[yongamerica]

Piracy is against Islamic Shari law. Why are the local Muslims picking and choosing which laws they feel must be enforced?

Piracy in the middle east should outrage every Muslim in the area, yet with the exception of Fundamental Islamic militants bent on enforcing Shari law (only for Muslims in regards to piracy though) there has been not one out cry or action from the middle east. Again, this appears to be another quiet Islamic religious war against Western people property and principles.

Where is the rich oil nations presence? Where is the rich oil nations outrage? Absent on both accounts.

[yongamerica]

Piracy is against Islamic Shari law. Why are the local Muslims picking and choosing which laws they feel must be enforced?

Piracy in the middle east should outrage every Muslim in the area, yet with the exception of Fundamental Islamic militants bent on enforcing Shari law (only for Muslims in regards to piracy though) there has been not one out cry or action from the middle east. Again, this appears to be another quiet Islamic religious war against Western people property and principles.

Where is the rich oil nations presence? Where is the rich oil nations outrage? Absent on both accounts.

[yongamerica]

Piracy is against Islamic Shari law. Why are the local Muslims picking and choosing which laws they feel must be enforced?

Piracy in the middle east should outrage every Muslim in the area, yet with the exception of Fundamental Islamic militants bent on enforcing Shari law (only for Muslims in regards to piracy though) there has been not one out cry or action from the middle east. Again, this appears to be another quiet Islamic religious war against Western people property and principles.

Where is the rich oil nations presence? Where is the rich oil nations outrage? Absent on both accounts.

[ausus-2009]

MikeTotten1,

I don''t know who you are or your country of origin, but piracy endangers lives as well as property. What happens when pirates attack a passenger ship and passengers get killed? It has happened before.

Piracy doesn''t happen just off the coast of Somalia. It is also rife in Asia. You can''t claim a nuclear waste dump in their case or depleted fisheries. Just the opposite. Some of the Asian pirates illegally fish Australian waters and are involved in drug and people smuggling.

What pushes a native fisherman over the edge in to a life of piracy OR a farmer in to a life of terrorism? It might much cheaper to have a balanced policy between enforcement and prevention, rather than just enforcement.

[jec1ny]

The solution to this problem is in one word. Convoys. It worked very well during the two world wars and the threats here are far less extreme. Put commercial shipping in the danger zone into convoys and assign an armed escort. Problem solved.

[jec1ny]

The solution to this problem is in one word. Convoys. It worked very well during the two world wars and the threats here are far less extreme. Put commercial shipping in the danger zone into convoys and assign an armed escort. Problem solved.

[laura552]

They should start mounting 40mm cannons on all the
ships for protection, enough to blow the scum pirates
out of the water and sink their small boats. If the
pirates got shot at with heavy fire power every time
they attempted to hijack a ship, maybe they would think twice about it.

[uswarrior]

Hey, check this out, Somalia now has an IMMIGRATION problem! Can you believe that!? Punks are coming from all over Africa to cash-in on Somalia''s bonanza!

I have no desire to re-visit Somalia, but someone has to establish rule of law there.

[yongamerica]

Convoys with armed and deadly escorts is the ticket.