Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban

Abstract

Concerns that ransom payments play a large role in encouraging and sustaining maritime piracy have prompted some commentators, including British Prime Minister David Cameron, to suggest that banning ransom payments may be necessary to end piracy. The benefit of taking away the possibility of the ransom should take away the incentive to engage in piracy and remove the funds to finance future illegal activities. The drawback of a ban is that in the short run it would put innocent lives at risk, a contrasting point that ship owners and their industry representatives have noted. This Article is sympathetic to both the arguments in favor of and against a piracy ransom ban. At the same time, we suggest that additional analysis is warranted before anyone concludes that a piracy ransom ban offers a promising tool for solving the problem of maritime piracy. This Article undertakes that additional analysis by examining (1) the legality of a ban from a criminal law standpoint on retributive theories about punishment and (2) the practicality of a ban given the international context in which the potential ban would have to apply. We conclude that a piracy ransom ban would likely be inconsistent with the retributive principles of criminal law, since it would punish innocent victims who pay ransoms under duress. We further suggest that even if there are good reasons, in theory, to criminalize ransom payments, banning piracy ransoms would be impractical from an international law standpoint since any such ban would pose collective action problems. Absent the unlikely universal ban, a piracy ransom ban supported only by select countries probably will not prove an effective deterrent to maritime piracy.

Keywords: piracy, ransoms