Eugene Kontorovich on the Piracy Cases
Eugene Kontorovich (Northwestern University Law School) -- without exaggeration the nation's leading academic expert on piracy law -- sends these additional thoughts on the Somali pirates cases:
1. The piracy statute has been revised numerous times since 1790, most substantively in 1820, but also up through 1907 (the latter revisions dealing solely with penalties).
2. I agree the law of nations in the statute tracks the external law of nations, but this raises common law crimes concerns. Indeed, this is why Congress was giving the job of "defining" piracies and offenses, because international law is too vague. This was explicit at the Convention. Now that the definition of piracy has expanded far past sea robbery, one might have to revisit Story's holding of US v Smith that everyone knows what piracy is and thus it is self-defining.
3. For the particular question in the case – do attempts fall within the definition – this entire inquiry is unnecessary, as attempts have always been included, though this is obviously easier to show by reference to the plain terms of UNCLOS than ancient cases and practice.
Point #3 seems like an additional reason the Supreme Court likely won't hear the cases, unfortunately.