A Pirate Looks at the Twenty-First Century: The Legal Status of Somali Pirates in an Age of Sovereign Seas and Human Rights

Mother, Mother Ocean, after all these years I've found, My occupational hazard being my occupation's just not around. (1) INTRODUCTION Captains Blackbeard and Kidd, and even Hook and Sparrow, are the primary conception of piracy for many people. (2) For these people, "real piracy is dead and the rest is entertainment." (3) But this vision of piracy merely represents the industry during its so-called Golden Age. (4) One need not travel to the seventeenth century or join a Goonies (5) adventure to find treasure or pirates. Pirates can be found today in the exact same places in which they thrived three hundred years ago: environments of lax law enforcement, advantageous geography, and sometimes even public complicity that allow them to ply their trade out of sight and out of mind. (6) Pirates have remained in that forgotten dimension--until recently. Somali pirates captured the world's attention on September 25, 2008, when a gang of heavily armed pirates in speedboats, referring to themselves as the Somali Coast Guard, hijacked a Ukrainian freighter, the Faina, carrying thirty million dollars worth of refurbished Soviet tanks, artillery, grenade launchers and ammunition. (7) The pirates demanded a ransom of twenty million dollars cash. (8) While this sensational story piqued the interest of many in Europe and the United States, it also exposed seemingly uncharacteristic deferential behavior and policy towards international outlaws. While the U.S. Navy encircled the pirates and the Russians moved in to join the engagement, the negotiations continued. (9) Certainly, concerns for the crew's safety caution against a commando operation on a ship full of explosives, but the galling fact is that on Somalia's Banaadir Coast this is business as usual, and, until recently, the international community has done little to change it. (10) The U.N. Security Council has now passed several resolutions intended to allow foreign states to police Somali waters for pirates and even continue their pursuit on land, (11) but the international response has been inconsistent. The French Navy has been aggressively confronting pirates, arresting them, and sending them to Paris to face trial. (12) By contrast, the British Royal Navy has generally sought to avoid confrontation with pirates due to concern over human rights violations. (13) With one fantastic exception, (14) the United States has also refrained from prosecuting Somali pirates on its own soil, preferring instead to seek arrangements for the trial of pirates in Kenya and elsewhere in the region. (15) This somewhat reluctant response from the international community is in large part the result of states proceeding cautiously in nebulous legal waters. (16) The effectiveness of Security Council resolutions has been limited because they leave unresolved the ultimate issue of a pirate's legal status. (17) Piracy--the world's oldest crime against the law of nations--does not have an easily applied and universally accepted definition. (18) First, it is not clear what a pirate--as opposed to a sea-robber, mutineer, or terrorist--is. Second, it is hotly contested whether piracy creates international jurisdiction, or whether areas of international jurisdiction (the high seas) create the only opportunity for legally cognizable piracy. Third, further ambiguity surrounds the question of whether a pirate has a nationality or human rights. Resolution of the Somali pirates' legal status will provide solid legal footing that will enable the international community to pursue the pirates forcefully. This Note attempts to define the legal status of Somali pirates. Part I examines the history of piracy and its past legal treatment in order to determine the customary international law of piracy as it existed prior to the twentieth century. Part II examines modern piracy generally, and then more specifically in the context of Somalia, with the purpose of establishing whether the Somali mariner-militants are in fact pirates. …