Measuring International Law through Piracy

My work uses the international response to piracy, both historical and contemporary, to assess the effectiveness of international criminal law and co­operation. Recent decades have witnessed the unprecedented growth of international criminal law and institutions. These developments are seen widely as signs of international law’s maturation: it now directly regulates individuals and is backed by criminal sanctions. Scholars and activists now imagine a future in which a cosmopolitan international law will break through national self-dealing to bring “an end to impunity” for atrocious crimes, fostering a world based on norms rather than power. On the other hand, some worry that internationalization will come at the expense of accountability and democracy, or simply dress geopolitical vendettas in legal robes.

The current debates about international justice remain mostly normative and theoretical. To the extent that they invoke precedent and evidence, they are drawn from the small universe of international criminal cases in the past two decades. It is evident that the modern international criminal justice system is not fully developed. The much vaunted International Criminal Court, for example, has only convicted one defendant. Its future efficacy and consequences cannot be assessed or predicted from its present embryonic state. Piracy provides a unique study in the progress and potential of international criminal law. For hundreds of years it has been a universal jurisdiction crime—one which any nation can prosecute, even with no connection to the offense. Indeed, the modern regime of international criminal justice was inspired by the legal treatment of piracy. Studying the legal treatment of piracy allows one to see what a fully matured system of universal justice would look like.

Piracy is also very much a current challenge, as demonstrated by the unprecedented resurgence of robbery on the high seas in the Gulf of Aden. It offers a yardstick against which to measure the progress of international law from the nineteenth century to today. It provides a historical and empirical perspective on much debated questions, such as the limits and promise of universal jurisdiction, the willingness of nations to sacrifice their own treasure, soldiers, and sovereign prerogatives for the sake of global justice, and the extent to which international norms have been internalized by international actors.

Piracy is a perfect test case for the potential of modern international criminal law precisely because the latter has a much more ambitious agenda, dedicated primarily to punishing war crimes and violations of human rights by governments. International criminal law today seeks to go after national leaders and to insert itself into armed conflicts. This inevitably provokes significant opposition from the governments involved. Pirates by contrast are relatively isolated and vulnerable individuals, with no political agenda or sympathizers.

Yet international law, even today, has proven entirely inadequate to address ordinary sea robbery. After the outbreak of Somali piracy in 2007, the United Nations Security Council passed numerous resolutions, the UN issued many reports and studies, and international lawyers worked to create an international court to try the pirates. Yet the strong international effort, backed by broad treaty language authorizing strong measures against piracy, did nothing to stop the attacks.

As my research shows, only a tiny fraction of high seas pirates face international justice. Of those pirates captured, over 90 percent are released. While piracy is the original universal jurisdiction offense, only five countries in modern times have invoked this tool against sea robbery. Further, the European nations most aggressive about expanding universal jurisdiction to war crimes and other high profile offenses have explicitly ruled out using it for piracy, which has far fewer political overtones than the more high profile crimes.

Nations are not motivated to prosecute piracy because doing so is costly and diverts scarce judicial resources to redress crimes that do not directly harm the prosecuting nation. But that is always true of universal jurisdiction—it is a kind of judicial foreign aid. Piracy shows that making something an international crime and subjecting it to universal jurisdiction does not guarantee any actual exercise of universal jurisdiction. The endorsement by nations of universal jurisdiction as an international legal norm seems almost entirely unrelated to their willingness to put it into practice. Moreover, the fact that nations are uninterested in prosecuting “ordinary” but apolitical international criminals (pirates), even as they pursue much more difficult cases against leaders of foreign governments for war crimes, suggests there is a heavy element of politics in the decision making of countries to exercise universal jurisdiction.

In the past year, Somali piracy has fallen considerably. This appears to be largely a function of the significant increase in the use of armed guards by shippers—previously, vessels transited the Gulf of Aden entirely defenseless. Ultimately force and private initiative have proven more important to reining in the paradigmatic international crime than the robust international legal regime designed to deal with such crimes. 

Eugene Kontorovich, Deutsche Bank Member (2011–12) in the School of Social Science, is Professor of Law at Northwestern University School of Law. His research spans the fields of constitutional law, international law, and law and economics. He is working on a book, “Justice at Sea: Piracy and the Limits of International Criminal Law,” under contract with Harvard University Press.