The Dread Pirate Who? Challenges in Interpreting Treaty and Customary International Law in the United States

Abstract

Since 2009 the prohibition of piracy, one of the most ancient norms of customary international law, has been giving rise to decidedly modern problems of legal interpretation in United States courts. This Article explores the contours of these problems and prescribes some potential solutions. Part I offers a brief introduction to the ways that piracy has come to U.S. shores in recent years and notes how federal law defines the offense. Part II offers an analysis of definitional issues under customary international law, shedding light on material that has, until now, not been fully addressed in the scholarly literature. In particular, it traces twentieth-century efforts to codify a comprehensive and precise definition of piracy jure gentium, and offers insight into the precise meaning of the offense as defined in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS). Part III examines three recent U.S. piracy cases in depth, demonstrating how Article 101 of UNCLOS has served as the juridical touchstone for federal courts’ interpretation of piracy jure gentium. It argues that while it is peculiar that the text of a treaty (rather than state practice and opinio juris sive necessitas) should serve as the principal point of reference for the definition of piracy jure gentium, it is not at all inapposite in this instance. Part IV recommends a two-step approach to interpreting the customary international prohibition of piracy in the United States. Central to this approach is the proposition that Article 101 of the UNCLOS is evidence of an existing customary international norm rather than an independent source of law.

Keywords: International Law, Customary International Law, Treaties, Constitutional Law, Maritime Piracy, Maritime Law, Law of the Sea Convention, Federal Courts