Arrrggh!!! Pirates (And The Law)

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

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.
By Andrew Cohen