Article

Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates

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Abstract

Piracy is a complex problem that threatens maritime safety and interferes with global commerce. Supported by networks of financiers and negotiators, Somali pirates viciously attack seafarers across expansive stretches of the Indian Ocean. Despite costly naval interventions, pirates continue to strike. Powerful nations from around the globe have been unsuccessful at stemming the problem because they have focused on capturing and prosecuting a relatively small number of seagoing pirates, while allowing pirate networks to operate with near impunity. To prevent future attacks, an effective and sustainable deterrence regime must be implemented to target the financiers and sophisticated kingpins who lead pirate networks. This Comment examines a new approach based on an age-old solution-privateers. The U.S. Constitution expressly provides that Congress, by issuing letters of marque, can enable private entities to conduct maritime warfare on behalf of the nation. Successive generations of American governments have employed letters of marque to combat maritime threats efficiently. Once more, the commissioning of privateers might prove to be an appropriate tool in the battle to dismantle pirate networks. Given the dispersed nature of the problem and relatively limited capabilities of the pirates, this Comment argues that privateers may provide a more cost-effective and sustainable approach than deploying naval forces. It suggests how a new regime for deploying privateers against Somali pirates could and should be established consistent with international law under either international or domestic frameworks.

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... This has given a contemporary understanding of those licenses and it has been considered a viable legal option to be employed by the USA (Richard, 2010;Schwartz, 2010), but is obviously not the same as was issued to privateers in the 'Golden Age of Piracy' from the 1650s to the 1730s, (as privateering was abolished by the Declaration of Paris in 1856). That possibility was contemplated in a wider sense by Hutchins (2011) developing the concept of how such a legal framework could be structured under both domestic and international regimes, and proposing the establishment of an international system of issuing Letters of Marque and how it might effectively deter pirates while adequately compensating and controlling privateers. Atallah (2011) emphasized that piracy must be tackled head-on; he assumed that piracy could not be stopped solely at sea and that development of a comprehensive land-based approach is essential. ...
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The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.
noting that twenty-one of sixty-five pirates were below the age of fifteen)
  • Id
Id. (noting that twenty-one of sixty-five pirates were below the age of fifteen).
How to Defeat Pirates: Success in the Strait
  • E G See
  • Michael Schuman
See, e.g., Michael Schuman, How to Defeat Pirates: Success in the Strait, TIME, Apr. 22, 2009, http://www.time.com/time/world/article/0,8599,1893032,00.html (noting, among others, the work of Singapore, Indonesia, Thailand, and Malaysia to reduce piracy in the Malacca Straits).
Collapse into Anarchy was Perfect for the Pirates of Puntland, DAILY TELEGRAPH (London)
  • David Blair
David Blair, Collapse into Anarchy was Perfect for the Pirates of Puntland, DAILY TELEGRAPH (London), Nov. 19, 2008, at 17.
Al-Shabaab, radical Islamic extremists, exercise de facto control over southern Somalia. See Mohamed Ahmed, Grenades Kill Five in Somalia's Seat of Parliament, REUTERS
BACKGROUNDER, May 12, 2008, http://www.cfr.org/ publication/12475. Al-Shabaab, radical Islamic extremists, exercise de facto control over southern Somalia. See Mohamed Ahmed, Grenades Kill Five in Somalia's Seat of Parliament, REUTERS, Nov. 27, 2008, http://www reuters.com/article/idUSTRE4AQ5MM20081127; Jeffrey Gettleman, Islamists Continue Advance Through Somalia, N.Y. TIMES, Nov. 14, 2008, http://www.nytimes.com/2008/11/14/world/africa/ 14somalia.html;
John Patch, Send the Warships Home
Pirate Attack Density in the Gulf of Aden (2008), UNOSAT (Nov. 26, 2008), http://unosatmaps.web.cern.ch/unosat-maps/SO/Piracy/UNOSAT_SO_PirateDensity_Nov08_Lowres_v1.pdf. 86. John Patch, Send the Warships Home, ARMED FORCES J., Apr. 2010, http://www.armedforcesjournal.com/2010/04/4537286.
Chinese Warships Escort 23-vessel Convoy off Somalia, RIA NOVOSTI
  • Ria Novosti
Russian Destroyer Escorts 5-Ship Convoy off Somali Coast, RIA NOVOSTI, May 20, 2009, http://www.en.beta.rian.ru/russia/20090520/155049607.html; Russian, Chinese Warships Escort 23-vessel Convoy off Somalia, RIA NOVOSTI, Sept. 21, 2009, available at http://www.shebacss.com/en/media-center-30512.html. 88. Porter, supra note 44 (noting convoys worked in World War II against hard-to-kill Uboats).
Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships
  • Circular
  • Mar
  • Org
Circular, Int'l Mar. Org., Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, MSC.1/Circ. 1334, at 12 (June 23, 2009), available at http://www.marad.dot.gov/documents/ MSC1_Circ1334.pdf. 91. Id. at 11.
Weighs Arming Ships to Fight Piracy, MSNBC
  • See Christopher Torchia
See Christopher Torchia, U.S. Weighs Arming Ships to Fight Piracy, MSNBC, Aug. 13, 2009, http://www.msnbc.msn.com/id/32405657/ns/world_news-europe.
at 45 (reproducing a letter of marque signed by President James Madison directing the privateer, Grand Turk, to seize "Algerine vessels, public or private, goods and effects
  • Supra Eastman
  • Note
EASTMAN, supra note 151, at 45 (reproducing a letter of marque signed by President James Madison directing the privateer, Grand Turk, to seize "Algerine vessels, public or private, goods and effects, of or belonging to the Dey of Algiers").
  • Thomas A Bailey
  • A Diplomatic
  • Of
  • American
THOMAS A. BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN PEOPLE 65 (1955) (stating that "the brutal Dey of Algiers was a Founding Father of the Constitution," because his actions enraged the masses, who demanded action be taken against the pirates).
How Did the United States Defeat the Barbary Pirates?
  • Nathan Williams
Nathan Williams, How Did the United States Defeat the Barbary Pirates?, HISTORY NEWS NETWORK, Sept. 26, 2001, http://hnn.us/articles/287.html; see also NELSON, supra note 175 n.179 (explaining Washington's initial concerns about privateers before being convinced of their strategic benefits).
Bring Back the Privateer
  • David D Winters
David D. Winters, Bring Back the Privateer, U.S. NAVAL INST. PROC., Apr. 2002, at 112;
Critics mistakenly believe this article prohibits privateers, while it actually just requires them to be properly identified as such. The article is likely a response to the deceptive practices of the Russian "volunteer navy
  • Id
Id. Critics mistakenly believe this article prohibits privateers, while it actually just requires them to be properly identified as such. The article is likely a response to the deceptive practices of the Russian "volunteer navy," which pretended to be merchant vessels during the Russo-Japanese War. See discussion supra notes 243-48.
noting that there is no statute, treaty, or general convention declaring that the adjudication in a prize court gives a title good against the world, but the proposition is generally conceded to be custom)
  • See Arnold
  • W Knauth
See Arnold W. Knauth, Prize Law Reconsidered, 46 COLUM. L. REV. 69, 74 (1946) (noting that there is no statute, treaty, or general convention declaring that the adjudication in a prize court gives a title good against the world, but the proposition is generally conceded to be custom). In Oakes v. United States, the Court stated that "when... property is captured by naval forces a judicial decree of condemnation is usually necessary to complete the title of the captors."
  • Henry Wager Halleck
HENRY WAGER HALLECK, ELEMENTS OF INTERNATIONAL LAW 206, 317 (1866).
British subjects appealed from decisions of American prize courts and in six cases the international arbitration tribunal established by the treaty reversed the rulings
  • However
However, following the Treaty of Washington in 1871, British subjects appealed from decisions of American prize courts and in six cases the international arbitration tribunal established by the treaty reversed the rulings. E.M.B., Comment, Appeals from Judgments of Prize Courts, 28 YALE L.J. 583, 587 (1919) (citing The Hiawatha, 67 U.S. (2 Black) 635 (1862);
Prize Acts of 1941, 1942, and 1944
Prize Acts of 1941, 1942, and 1944. 55 Stat. 261 (1941) (codified at 34 U.S.C. § 1131 (Supp. 1945));
(citing Giles Noakes, a chief maritime security officer for an international ship-owners association, as saying "[t]he industry believes very strongly that it's not for the companies to train crews to use firearms and then arm them
  • Erika Lovley
Erika Lovley, Ron Paul's Plan to Fend Off Pirates, POLITICO (Apr. 15, 2009, 4:16AM), http://www.politico.com/news/stories/0409/21245.html. 346. See Schwartz, supra note 2. 347. Most commercial mariners lack the professional military ethics and training necessary to conduct themselves in a disciplined fashion in combat situations. See Mark Clayton & Bridget Huber, To Stop Pirates, Do Ships Need Firepower?, CHRISTIAN SCI. MONITOR, Apr. 8, 2009, http://www.csmonitor.com/layout/set/print/content/view/print/209529 (citing Giles Noakes, a chief maritime security officer for an international ship-owners association, as saying "[t]he industry believes very strongly that it's not for the companies to train crews to use firearms and then arm them... [c]rews could get injured or killed, to say nothing of damage to the ship").
Convention (VII) relating to the Conversion of Merchant Ships into War-Ships. The Hague
  • E G See
  • Joshua Sudock
See, e.g., Joshua Sudock, Private Security Contractors Causing US Headaches, ORANGE CNTY. REG., Dec. 31, 2010, http://m.ocregister.com/news/contractors-281002-private-causing.html. 348. Convention (VII) relating to the Conversion of Merchant Ships into War-Ships. The Hague, 18 October 1907, supra note 253, art. I.
at 12 (citing Prussian Government Decree on the Constitution of a Volunteer Naval Force
  • Supra Twiss
  • Note
TWISS, supra note 225, at 12 (citing Prussian Government Decree on the Constitution of a Volunteer Naval Force, Jul. 24, 1870).
Admittedly, this raises legal questions about whether the military can try civilians in a court-martial. Anna Manasco Dionne, Comment
  • Parrillo
Parrillo, supra note 321, at 3. Admittedly, this raises legal questions about whether the military can try civilians in a court-martial. Anna Manasco Dionne, Comment, "In Time of Whenever the Secretary Says": The Constitutional Case Against Court-Martial Jurisdiction over Accompanying Civilians During Contingency Operations, 27 YALE L. & POL'Y REV. 205 (2008).
The American Attitude Towards Capture at Sea, 11 AM
  • H S See
  • Quigley
See H. S. Quigley, The American Attitude Towards Capture at Sea, 11 AM. J. INT'L L. 820, 836 (1917). 373. Id.
  • Bill Dedman
Bill Dedman, Gitmo Interrogations Spark Battle over Tactics, MSNBC, Oct. 26, 2006, http://www.msnbc.msn.com/id/15361458/ns/world_news-terrorism;
  • Joseph Story
JOSEPH STORY, NOTES ON THE PRINCIPLES AND PRACTICE OF PRIZE COURTS 28 (1854).
Interview-Somali Pirate Kingpins Going Unpunished, REUTERS
  • Andrew Cawthorne
Andrew Cawthorne, Interview-Somali Pirate Kingpins Going Unpunished, REUTERS, Oct. 27, 2008, http://uk.reuters.com/article/idUKLR188693 (quoting Andrew Mwangura director of the East African Seafarers' Association).
This is London-the Capital of Somali Pirates' Secret Intelligence Operation, GUARDIAN (London)
  • See Giles Tremless
See Giles Tremless, This is London-the Capital of Somali Pirates' Secret Intelligence Operation, GUARDIAN (London), May 11, 2009, http://www.guardian.co.uk/world/ 2009/may/11/ somalia-pirates-network (noting pirate spies have infiltrated shipping operations centers and government agencies).
interview with Yardimci shipping manager Haldun Dincel, who negotiated the release of his company's ship from pirates)
  • Id
Id. (interview with Yardimci shipping manager Haldun Dincel, who negotiated the release of his company's ship from pirates).