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- A Word on Customary International Law
-
Despite universal condemnation of piracy, there has been debate surrounding what constitutes piracy under customary international law. Most courts and commentators agree that an act of violence (other than an act of war) committed at sea, is a necessary element of piracy. Louis B. Sohn, Law of the Sea in a Nut Shell 80 (West Publishing Company 2010).
- Piracy has been a recognized crime for as long as crimes and the law of
crimes have existed. In fact, piracy is one of the first three globally recognized crimes before modern times and may thus find its foundations in natural law. It may therefore be a jus cogens norm in addition to customary international law, denying states from opting out of its implementation and enforcement. Louis B. Sohn, Law of the Sea in a Nut Shell 80 (West Publishing Company 2010).
- Although the
United States is currently only a signatory to the LOS Convention and has not
ratified it (therefore, not a party to it), the United States has
recognized some of the LOS Convention provisions, such as those related to piracy, as customary international law and as such, binding
on all states whether parties or not. Moreover, the United
States administration has also continued to promote the LOS Convention
itself and has accepted many other dozens of treaties that complement
the LOS
Convention. The Senate Foreign Relations Committee has recommended
time and time again that the United States Senate give its consent to
the acceptance of the LOS Convention. However, the Senate has not yet
voted on the matter.
- Regardless of whether or not the United
States has formally ratified the LOS convention, there is no doubt that
the many rules found in the LOS Convention provide evidence of customary international law,
which the United States courts may apply in accordance with the rules
articulated by the Supreme Court in The Paquete Habana, 175 U.S. 677,
700 (1900)
(“International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as
often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty, and no
controlling
executive or legislative act of judicial decision, resort must be had to
the
customs and usages of civilized nations.”), and The Charming Betsy, 6
U.S. 64,
118 (1804) (“An act of congress ought never to be construed to violate the
law of
nations if any other possible construction remains.”) Louis B. Sohn, Law of the Sea in a Nut Shell 8 (West Publishing Company 2010).
