Legal Challenges and Responses
Edited by Douglas Guilfoyle
Chapter 14: Policy tensions and the legal regime governing piracy
This volume set out to examine the public and private law responses to modern piracy in context and some of the legal challenges piracy presents to both government and commercial actors. This has given rise to a number of recurrent themes. First, there is the problem of definition. Second, there is the palpable fact that piracy is situated: local conditions of geography, economic opportunity and governance all shape piracy. Third, multilateral efforts to repress piracy off Somalia in particular raise questions about the tension between efficiency (how do we reduce the rate of successful pirate hijackings and ensure that captured pirates are sent for trial?) and broader questions of justice, due process and human rights. Fourth, the legal response to piracy has always involved a tension between state sovereignty or jurisdiction on the one hand and collective responses on the other. Piracy on the high seas would be impossible to suppress or prosecute effectively if an attacked ship had to await the intervention of a naval vessel of either its flag state or that of its attacker. This has led to the traditional exception to the freedom of the high seas which allows all states to police acts of piracy on the high seas. Nonetheless, states continue to guard jealously their sovereign jurisdiction over similar crimes in territorial waters. States are also very reluctant to allow exceptions made for piracy to become generalised to other areas of maritime law, as seen in the cautious approach of the Security Council in authorising counter-piracy action in relation to Somalia.
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