On (1): I am still not convinced that Art 86 helps much for the reasons given at my earlier point (4), nor do I see how Art. 105 bears on the jurisdiction of States over suspects who are territorially present and were never captured by warships (as in US v Ali). I am intrigued by the idea of “second class piracy”, however. It can certainly be put against me on my own terms that Art. 101(c) should be considered as some form of treaty-only rule.

On (2): in that 2009 memo I – and many others at that time – was really only discussing what I have called here piracy 1 and 2. Piracy 3 was simply not on the agenda, though certain naval officers did raise it with me in the margins of that or subsequent meetings. For what it’s worth, in my subjective experience, this was plain oversight: the facts had not yet made detailed consideration of Article 101(c) relevant.

On (3): I am not sure I have made use of custom as an interpretative tool in the sense described. My view on universal jurisdiction over piracy was that UNCLOS was not to be presumed to displace a clear prior rule of custom absent express language. I don’t think that proposition involves using custom to interpret treaty (except perhaps collaterally), it’s simply a point about the parallel existence of custom and treaty rules with respect to the same broad subject matter. The treaty does not have to be interpreted to achieve this result.

Here, discussing Art. 101(c), there is seemingly a new rule first introduced by treaty. However the entire treaty definition now seems accepted as having customary law status, if the statement of States are to be taken at face value.

The interesting question is the consequences of that situation.

On (5): I am not sure a broad reading of “facilitation” stretches to the example of simply setting out on a piratical cruise (i.e. in the territorial sea) if only for the reason this situation is already covered by the plain words of Art. 101(b) read alongside Art. 103. However, these provisions could still perhaps lead (on my argument) to the result Eugene finds objectionable – extending the definition of piracy to cover, in certain cases, acts in the territorial sea. It would not, however, extend enforcement jurisdiction to the TS, which remains limited by Article 105.

Finally, I note the United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS) has observed in an IMO report that: “Subparagraphs (b) and (c) of article 101 respectively on voluntary participation in the operation of a pirate ship or aircraft and incitement and intentionally facilitating an act of piracy, do not explicitly set forth any particular geographic scope” IMO Doc LEG 98/8/1, p. 4 at n.15 (Legal Committee).

The job of DOALOS is, in part, to facilitate common understanding of the Convention. If a geographic limitation was intended from the travaux to be inherent in Article 101(b) and (c) one would expect them to have raised the point.

Anyway, my thanks again to all; there’s much here to think about at more leisure.

1) Art. 101(c) can not be read in isolation: it must be read alongside Art. 86 and Art. 105. In this context, the text is far from clear about the existence of UJ for land-based facilitation. Together this suggests their either 101c is limited to the high seas, or if not, is a “second class piracy” does not fall within universal jurisdiction.

2) The lack of clarity of text is emphasized by the prior consensus that piracy is limited to the high seas. As Douglas has written in his excellent memo for the Foreign Office, “piracy can occur only on the high seas, the same acts within territorial waters are usually termed “armed robbery at sea” and are within the jurisdiction of the coastal State. While geographically arbitrary, the distinction is made on the basis that on the high seas unlawful violence threatens all shipping.” In that excellent memo, he notes Art. 101(c) but does not mention any broader jurisdiction. Of course everyone is free to spot new things, but the newness cuts against it being plain language.

3) I agree with Douglas that UNCLOS trumps prior custom when they are inconsistent. But when UNCLOS is unclear, ambiguous or leaves a gap, reference to prior and current custom is appropriate. That custom clearly limits piracy to the high seas. Indeed, Douglas’s analysis itself makes this kind of use of custom as an interpretative tool. On one hand, he dismisses the customary restriction of piracy to the high seas as overridden by treaty language – despite the lack of any language extending universal jurisdiction to facilitation. On the other hand, for Art. 105, which in terms makes no mention of universal jurisdiction beyond the capturing state, Douglas and others have argued should be interpreted in light of the background norm or custom of universal jurisdiction.

4) If Douglas is right that UNCLOS 101 creates three different piracy crimes, it is not clear that all would be subject to universal jurisdiction. UNCLOS mentions other crimes (slave trading, drug trafficking) which are not subject to universal jurisdiction, and this was an explicit decision. Thus one would think if universal jurisdiction is described as applying only to the “high seas,” or simply not mentioned for an offense, then it does not apply.

5) The broad reading of “facilitation” threatens to collapse the fundamental distinction between piracy under international law and “domestic piracy” in territorial waters. While Douglas’s arguments focus on facilitation on land, they would presumably apply in territorial waters also. Thus a crew would be guilty of piracy the moment they set out on a piratical cruise; perhaps their robberies in territorial waters could also be internationally prosecuted as means of facilitating (financing) their high seas activities. The overwhelming tenor of commentary and national statements suggest that activity in territorial waters is entirely outside the reach of UNCLOS’s piracy definition.

6) I do not see the relevance of universal jurisdiction practice for other crimes. The reasons for their universal cognizability are entirely different, as I have detailed elsewhere: thus applying those models of UJ to piracy would not be “harmonizing.” A clear example of this comes from the lack of extradite or punish provisions in UNCLOS: this is a different model than other UJ regimes, and I see no reason to import jurisdictional principles from one area to another.

As to your first question, the government charged Ali with conspiracy to commit piracy, and the court held that piracy is limited to the UNCLOS definition, which includes aiding and abetting liability, but not conspiracy (http://djilp.org/wp-content/uploads/2012/07/US-v.-Ali-D.D.C..pdf).

And regarding the second question, I hope the answer is yes. If not, don’t the voluntary payment of the ransom (generally done by a shipping and/or insurance company) and the voluntary negotiation for ransom (usually done by a private negotiator hired by the shipping company) constitute criminal offenses? That seems unworkable.

Thank you all for the interesting and timely discussion of this issue. I’ll make two quick points tending toward’s Eugene’s interpretation and leave it to the more seasoned professionals to let me know if I am missing something.

As to the otisoty of the high seas reference in Art. 101(1)(a)(i), there is a way to read it and the one in Art. 86 that leaves the former operable even if the latter applies to each section of 101. Art. 86 essentially states that Section VII applies only to the high seas, and Art. 101(1)(a)(i) says that piracy includes acts of violence, detention, and deprivation “directed on” the high seas. To my mind, the high seas reference in 101 applies to a situation where the attacking ship is on the high seas and the victim ship is within the territorial waters of a state. Art. 101 appears to say that such a situation is not a piracy jure gentium, and the coastal state would have jurisdiction. Using that reading, Art. 86 means what Prof. Kontorovich (sorry, Eugene), says it means: that the perpetrator must be physically present on the high seas for his acts to constitute piracy under the law of nations. Such a reading leaves both references to the high seas operable and meaningful.

The second point is to distinguish the rationale for universality of genocide and torture from that of piracy. Genocide and torture achieved their status as crimes of universal jurisdiction for the inherently ghastly nature of the underlying acts these crimes entail. Conversely, the physical acts underlying piracy – be they armed robbery, kidnapping, false imprisonment, or even murder – while deplorable, are regularly adjudicated in domestic courts and are not seen as sufficiently grave to warrant universality. The only basis for universal jurisdiction over piracy is that the criminal acts physically take place outside the traditional jurisdiction of any state.

I am far from the first person to advance this second argument, but it is important that it be restated here, as it lends credence to the textual interpretation set out first.

I would, however, underline my doubts regarding this development from a strategic point of view. The piracy definition is beginning to widen significantly, at least in scholarly perception. The „private ends“ reading as excluding merely state action, which I find very convincing, and now potentially a geographically unlimited acceptance of Art. 101 b) and c) UNCLOS. This development should be observed closely, since the broader the definition gets, the more it moves away from the widespread international acceptance. Yet the almost universal acceptance of the definition has undoubtedly been a major advantage for the international community in its fight against piracy so far.

PS I will readily accommodate the Australian objections towards stilted American/European courtesy, Tim is fine.

Thank you for your comments. I intended to keep the points below brief. I did not. I apologise if they prove at all hard to follow:

(1) to put my cards swiftly on the table, I am only really interested in how we interpret UNCLOS and the High Seas Convention. Pre-1956 case law is of limited relevance as treaty definitions have little credence as codifications. They were fairly clearly de lege ferenda exercises and had to be given the contradictory source materials. It is their later acceptance as custom that makes them custom.

(2) the words we are arguing about are, on their face, very broad. The question is how we are to interpret them.

(3) the ILC Commentary does not, to my mind, help. It is not a line by line explanation of the drafting. The passage quoted by Prof Kontorovich, in my view, explains only the rapporteur’s understanding of the discussion leading to the formulation of ILC article 39(1). It has little or nothing to say about the rest of the article.

(4) textually, Article 101(1) is messy, but we must try and make sense of it. If, as Prof Kontorovich seems to suggest, the whole of Art 101 should be read as limited by Art 86, then the reference to ‘the high seas’ in Art 101(1)(a)(i) is rendered otiose. On the other hand, several other provisions do extend the reach of provisions in Part VII beyond the high seas: e.g. Art 58(2) and 101(1)(a)(ii). There may be other examples, but I’ve not had time to check thoroughly.

(5) there may be a point about the validity, as an historical matter, of grafting modern ‘universal jurisdiction’ (UJ) onto piracy.That is, UJ over
‘core’ international crimes has obviously arisen quite separately to piracy and has several different features. That said modern UJ over, say, war crimes, would clearly encompass assertions of jurisdiction over extra-territorial acts of aiding and abetting war crimes. Demanding historical proof that such jurisdiction was exercised prior to the HSC/UNCLOS over piracy risks reading down the plain terms in treaties that were progressive developments of the law. Despite their separate origins, I see no problem in point of principle saying that if universal jurisdiction has expanded to cover accessorial liability for ‘modern’ international crimes that development cannot also be applied to piracy law, especially where clear treaty language (now accepted as custom) supports that conclusion.

(6) My basic point is that courts here are principally confronted with a treaty interpretation issue. The historical material, on my preliminary survey of the drafting history, is curiously silent on what these words were meant to mean. This, however, happens in drafting texts.

(7) Courts will also be faced with a question as to how this drafting relates to universal jurisdiction. When States say (as they do) that there is universal jurisdiction over piracy and piracy is codified in UNCLOS, what does that mean? Do they mean ‘universal jurisdiction’ in the (expansive) current sense of the term or do they mean ‘universal jurisdiction only in so far as it can be proven to have been actually applied historically in piracy cases’? My instinct is courts will promote a harmonised and principled reading of the law, and not confine jurisdiction over piracy to a small historical box. If an historical approach is taken, evidence will obviously be scant as it usually is for piracy trials.

(8) The strongest argument for a restrictive reading may in fact be a human rights law argument: in dubio pro reo. However, arguing uncertainty in the law should benefit the defendant has not notably aided piracy defendants to date.

I could, of course, be wrong in all of this (or come to change my mind). It is up to State practice at this point to settle definitively what is meant by Art 101(3) UNCLOS. I think, however, to argue the point on historic case law alone would be a mistake and would ignore the fact that the treaties changed rather than codified the customary law. Art 101(3) potentially presents us with a tabula rasa for interpretation.

PS as an Australian I do find the American/European courtesy of using titles a little stilted. Accept my pre-emptive apologies if I lapse into first names hereafter.

Additionally, I do not think a prohibition on “inciting” limited to the high seas would be pointless. The 18th and 19th century pirate trials are full of accounts (no doubt self-serving) of sailors on an initially innocent cruise goaded into turning pirate by a charismatic mariner. The UNCLOS definition captures such ringleaders and masterminds, even if they committed no “acts of violence or detention.”