JURISDICTION AND PIRACY ON THE HIGH SEAS

With the pirate attack on the Maersk-Alabama off the coast of Somalia and the rescue of the captain, Richard Phillips, piracy has been in the news. Its an ancient crime. Often when we think of piracy we think of Sir Francis Drake or Jean Lafitte who aided Andrew Jackson at the Battle of New Orleans. But piracy is a serious crime punished under U.S. law by life in prison.

Piracy is defined by the United Nations Convention on the Law of the Sea as

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The International Maritime Bureau defines piracy as:

the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act

Piracy is a rather unique crime. Unlike most crimes, under both international law and US law their is no need for a showing of jurisdiction. For most crimes, chargeable in the United States their must be a showing that the government has a right to charge the offense. Generally, although there are exceptions, it is done by showing that the crime occurred either in the United States, its territorial waters or on land controlled by the United States For example jurisdiction was found in order to allow the prisoners at Guantanamo and Bagram to file a writ of habeas corpus in the United States Courts. Article I, Section 8 of the Constitution gives Congress the power to “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Recently crimes against humanity, war crimes and genocide

Of course it makes sense that jurisdiction in piracy cases is not governed by physical boundaries. After all, international waters are not within the national boundaries of any county. It certainly and necessary that jurisdiction be extended to remaining pirate who took Captain Phillips. After all he was on an American flag ship. But under the law we can charge any pirate who takes any ship, regardless of which flag it flies.