A High Seas Requirement for Inciters and Intentional Facilitators of Piracy Jure Gentium and Its (Lack of) Implications for Impunity
49 Pages Posted: 1 Mar 2013 Last revised: 28 Sep 2013
Date Written: September 27, 2013
Around 2005, maritime piracy began to make a troubling resurgence three quarters of a century after consensus had been reached that the age of piracy had “permanently ended.” It returned, however, in a slightly different form, with pirates relying much more on land-based facilitators than did their historical counterparts. Maritime piracy’s renaissance made pressing the question of whether an inciter or intentional facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This article undertakes a thorough analysis of the text, statutory context, drafting history, and policy impetus behind UNCLOS art. 101 as it relates to universal jurisdiction over facilitators. It finds that the preponderance of the evidence suggests that a high seas requirement in fact exists for facilitators of piracy jure gentium. From there, the article considers the likely implications of such a requirement on modern facilitators of maritime piracy. Through the lens of political economy, the article concludes that universal jurisdiction piracy prosecutions pose something of a commons problem or, alternatively, a public goods problem. Because rational actors operating in a market tend to internalize externalities and under-produce public goods, theory suggests that universal jurisdiction prosecutions should be quite rare. The article goes on to find that state practice shows such prosecutions to be quite rare in fact. The article thus concludes that there is a high seas requirement for inciters and intentional facilitators of piracy jure gentium, but that this requirement will have few practical implications on impunity for facilitators.
Keywords: maritime piracy, universal jurisdiction, law of the sea, public international law
Suggested Citation: Suggested Citation