The Volokh Conspiracy

A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates.

Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard Draft Convention of 1932. The ILC Commentary to the Law of Sea Treaty specifically endorses the latter, saying that “in general” it agrees with the Draft Convention (it does not provide such deference to the former.

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the
citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Having looked further through the Committee’s work, I see no hint of an exclusion of political motives, and several pieces of evidence suggesting it was included.

The Commission’s final Commentary to the definition of piracy explained: “The intention to rob (animus furandi) is not required. Acts of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for gain.” The argument for Sea Shepherd is that they are not motivated by negative feelings, but by positive ones. Of course “hatred and revenge” are only illustrative – and quite typical of political violence. The language about “hatred and revenge” borrows from the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927. That document goes on the exclude “purely political motives” from piracy. Notably the ILC Commentary does not reference or endorse that second limitation. Quoting part of the 1927 report but not other relevant parts suggests the exclusion of the latter.

Let us now consider the proceedings leading up to the final text. At the May 8, 1956 meeting, Sir Gerald Fitzmaurice and others expressed some concern that “merchant vessels” could in wartime “seeking to acquire, quite inadmissibly, the status of warships by hoisting a naval flag in order to board, capture, or sink other vessels, after which they would revert to their former status of merchant ships.” Thus the general immunity of warships, and their exemption from piracy, had to strictly be limited to real, regularly constituted warships. The relevant point for our purpose is that if political purposes were enough to create immunity for a private vessels, a merchant vessel would have no need to redress itself to raid enemy commerce in wartime; such acts are by definition political. Yet in the view that piracy is the lack of public status, such concerns make sense.

The key aspect of private ends is the lack of public authority As Fitzmaurice commented at the May 9, 1956 meeting of the Commission: “The Commission’s conception had been that piracy was essentially an act committed by a ship’s company or persons acting on their own authority, thereby excluding warships.” He thus supported extending the piracy exemption to government ships other than war ships, since they also operated under public authority.

On a side note, I should add that I’m quite surprised and amused by the intensity of feeling on this issue. I wish there was as much sympathy for Ali, a guy who may spend his life in federal prison for something that isn’t piracy.) I must admit, I don’t have a TV, and do not know anything about the heroic depiction of Sea Shepherd. But Ali got a very sympathetic turn in Stolen Seas.

Committees in the Hawaii and New Mexico state legislatures recently approved bills that would decriminalize the possession of marijuana [HT: Tom Angell of Law Enforcement Against Prohibition]. Unfortunately, the bills would only decriminalize possession of small amounts of marijuana. Nonetheless, they would be a major change from the status quo. If the laws are enacted, these states would add to the momentum for legalization created by the recent passage of referendum initiatives legalizing marijuana in Colorado and Washington. Both public and elite opinion is gradually turning against the War on Drugs.

Obviously, even if these and other states legalize marijuana, it would remain illegal under federal law. But, as more and more states legalize marijuana, it will make it difficult for the federal government to continue the federal “war” against it, and possibly increase political pressure for repealing the federal ban entirely.

In my copious spare time, I occasionally amuse myself by doing some physics problems (out of this book). Sometimes a problem expresses a time in years, and since it’s usually a good idea to convert times into seconds, one sometimes has to figure out how many seconds there are in a (365-day) year. Fortunately, someone with a good knowledge of Broadway musicals can save some steps by just noting that the answer is 525,600 x 60.

UPDATE: Commenter Eric Jablow points out that xkcd did this already.

I haven’t posted much in the last few days, because I’ve been working on yet another cert petition. (“[T]he burnt Fool’s bandaged finger goes wabbling back to the Fire.”) But I thought I’d pass along a link to a post on this subject by Prof. Howard Friedman (Religion Clause).

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.

Yep, Josh Blackman has created a FantasyPope game.  Make your predictions.  To the winner goes... eternal salvation?

Paul Campos has posted a farewell post at his “Inside the Law School Scam” blog.

UPDATE: Comments from Paul Horowitz and Brian Leiter.

It is often argued that regulatory takings doctrine is a form of “Lochnerism” and a revival of “substantive due process” constraints on economic regulation.  So, for instance, in his Dolan v. Tigard dissent, Justice Stevens traces the history of the doctrine to the Lochner period and finds the roots of regulatory takings doctrine in late-19th century substantive due process.

The so called “regulatory takings” doctrine . . . has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair.

As a historical matter, Justice Stevens was correct that the first decisions obligating states to compensate  landowners for the taking private property for public use  (Chicago, Burlington & Quincy Railroad v. Chicago) and holding that the regulation of land use could require compensation if it “goes too far” (Pennsylvania Coal v. Mahon) date from the so-called “Lochner era.”  Curiously enough, the authors of these two opinions are, respectively, Justice John Marshall Harlan and Justice Oliver Wendell Holmes.  Why is this curious?  Because Justices Harlan and Holmes wrote the two dissenting opinions in Lochner.  So while contemporary commentators and critics may see regulatory takings doctrine as Lochnerism reborn.  Those who challenged Lochner at the time apparently saw things differently.