UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy

33 Pages Posted: 21 Aug 2011 Last revised: 24 Aug 2011

Date Written: June 1, 2011

Abstract

The international response to acts of maritime piracy around Somalia requires a credible foundation in international law. Naval patrols from nearly every world power lack accurate and well-reasoned jurisdictional mandates necessary to carry out their duties effectively. They want for this essential legal complement because their states fail to thoroughly asses the rel­evant international laws that ought to guide such conduct. After the lives lost and the millions spent to recover surviving hostages, the United Nations Convention on the Law of the Sea will be the most significant victim of this oversight. Its articles on piracy and supporting commentary prohibit the exercise of jurisdiction over suspected pirates by any state other than that which apprehends them. Yet capturing naval ships transfer suspects to other states as a matter of standard practice, and undermine the convention’s status as a codification of custom­ary international law in doing so. The Note reasons that transfers of suspected pirates are legally permissible, but should not remain the default practice. It argues for a comprehensive assessment of the legal forces that factor in the piracy problem, and for revision of the convention in order to facilitate an effective front-line response to the pirate scourge.

Keywords: Law, International Law, Criminal, Piracy, Maritime Piracy, Somalia, UNCLOS, Law of the Sea, Treaty, Customary Law, Security, Trade, Navy, Kenya, Jurisdiction, Extraterritorial Jurisdiction, Terrorism, Hijacking, Kidnapping

Suggested Citation

Kelley, Ryan P., UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy (June 1, 2011). Minnesota Law Review, Vol. 95, No. 6, p. 2285, 2011. Available at SSRN: https://ssrn.com/abstract=1913256

Ryan P. Kelley (Contact Author)

Greenberg Traurig, LLP ( email )

NY
United States

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