Piracy Prosecutions Issues

Piracy U.S. Prosecutions in 2013 (Continuation)

United States views on international law [1] in relation to Piracy U.S. Prosecutions: 1. Piracy and the Charming Betsy Canon Section 1651 criminalizes “the crime of piracy as defined by the law of nations.” Correspondence between the domestic and international definitions is essential to exercising universal jurisdiction. Otherwise, invocation of the magic word “piracy” would confer universal jurisdiction on a nation and vest its actions with the authority of international law. See Randall, in this world legal Encyclopedia, at 795. As a domestic matter, doing so may be perfectly legal. But because Charming Betsy counsels against interpreting federal statutes to contravene international law, we must satisfy ourselves that prosecuting Ali for aiding and abetting piracy would be consistent with the law of nations. Though § 1651's invocation of universal jurisdiction may comport with international law, that does not tell us whether § 2's broad aider and abettor liability covers conduct neither within U.S. territory nor on the high seas. Resolving that difficult question requires examining precisely what conduct constitutes piracy under the law of nations. Luckily, defining piracy is a fairly straightforward exercise. Despite not being a signatory, the United States has recognized, via United Nations Security Council resolution, that the U.N. Convention on the Law of the Sea (“UNCLOS”) “sets out the legal framework applicable to combating piracy and armed robbery at sea.” S.C. Res.2020, U.N. Doc. S/Res/2020, at 2 (Nov. 22, 2011); see United States v. Dire, 680 F.3d 446, 469 (4th Cir.2012). According to UNCLOS: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship … and directed: (i) on the high seas, against another ship … or against persons or property on board such ship …; (ii) against a ship, … persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship … with knowledge of facts making it a pirate ship …; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). UNCLOS, art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397, 436. By including “intentionally facilitating” a piratical act within its definition of piracy, article 101(c) puts to rest any worry that American notions of aider and abettor liability might fail to respect the international understanding of piracy. One question remains: does international law require facilitative acts take place on the high seas?

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Explicit geographical limits—”on the high seas” and “outside the jurisdiction of any state”—govern piratical acts under article 101(a)(i) and (ii). Such language is absent, however, in article 101(c), strongly suggesting a facilitative act need not occur on the high seas so long as its predicate offense has. Cf. Dean v. United States, 556 U.S. 568, 573, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)). So far, so good; Charming Betsy poses no problems. Ali endeavors nonetheless to impute a “high seas” requirement to article 101(c) by pointing to UNCLOS article 86, which states, “The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” 1833 U.N.T.S. at 432. Though, at first glance, the language at issue appears generally applicable, there are several problems with Ali's theory that article 86 imposes a strict high seas requirement on all provisions in Part VII. For one thing, Ali's reading would result in numerous redundancies throughout UNCLOS where, as in article 101(a)(i), the term “high seas” is already used, and interpretations resulting in textual surplusage are typically disfavored. Cf. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Similarly, many of the provisions to which article 86 applies explicitly concern conduct outside the high seas. See, e.g., UNCLOS, art. 92(1), 1833 U.N.T.S. at 433 (“A ship may not change its flag during a voyage or while in a port of call….”); id. art. 100, 1833 U.N.T.S. at 436 (“All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”). Ali's expansive interpretation of article 86 is simply not plausible.

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What does article 86 mean, then, if it imposes no high seas requirement on the other articles in Part VII of UNCLOS? After all, “the canon against surplusage merely favors that interpretation which avoids surplusage,” not the construction substituting one instance of superfluous language for another. Freeman v. Quicken Loans, Inc., ––– U.S. ––––, 132 S.Ct. 2034, 2043, 182 L.Ed.2d 955 (2012). We believe it is best understood as definitional, explicating the term “high seas” for that portion of the treaty most directly discussing such issues. Under this interpretation, article 86 mirrors other prefatory provisions in UNCLOS. Part II, for example, concerns “Territorial Sea and Contiguous Zone” and so opens with article 2's explanation of the legal status of a State's territorial sea. 1833 U.N.T.S. at 400. And Part III, covering “Straits Used for International Navigation,” begins with article 34's clarification of the legal status of straits used for international navigation. 1833 U.N.T.S. at 410. Drawing guidance from these provisions, article 86 makes the most sense as an introduction to Part VII, which is titled “High Seas,” and not as a limit on jurisdictional scope. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks omitted)). Thwarted by article 101's text, Ali contends that even if facilitative acts count as piracy, a nation's universal jurisdiction over piracy offenses is limited to high seas conduct. In support of this claim, Ali invokes UNCLOS article 105, which reads, On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed…. 1833 U.N.T.S. at 437. Ali understands article 105's preface to govern the actual enforcement of antipiracy law—and, by extension, to restrict universal jurisdiction to the high seas—even if the definition of piracy is more expansive. In fact, Ali gets it backward. Rather than curtailing the categories of persons who may be prosecuted as pirates, the provision's reference to the high seas highlights the broad authority of nations to apprehend pirates even in international waters. His reading also proves too much, leaving nations incapable of prosecuting even those undisputed pirates they discover within their own borders—a far cry from “universal” jurisdiction. Article 105 is therefore no indication international law limits the liability of aiders and abettors to their conduct on the high seas.

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Ali's next effort to exclude his conduct from the international definition of piracy eschews UNCLOS's text in favor of its drafting history—or, rather, its drafting history's drafting history. He points to UNCLOS's origins in article 15 of the 1958 Geneva Convention on the High Seas, which closely parallels the later treaty's article 101. See Geneva Convention on the High Seas, art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. Article 15 was based in large part on a model convention compiled at Harvard Law School by various legal scholars, see 2 ILC YEARBOOK 282 (1956), who postulated that “[t]he act of instigation or facilitation is not subjected to the common jurisdiction unless it takes place outside territorial jurisdiction.” Joseph W. Bingham et al., Codification of International Law: Part IV: Piracy, 26 AM. J. INT'L L. SUPP. 739, 822 (1932). Ali hopes this latter statement is dispositive. Effectively, Ali would have us ignore UNCLOS's plain meaning in favor of eighty-yearold scholarship that may have influenced a treaty that includes language similar to UNCLOS article 101. This is a bridge too far. Legislative history is an imperfect enough guide when dealing with acts of Congress. See Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring in the judgment) (“If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history.”). Ali's inferential chain compounds the flaws—and that even assumes a single intent can be divined as easily from the myriad foreign governments that ratified the agreement as from a group of individual legislators. Even were it a more feasible exercise, weighing the relevance of scholarly work that indirectly inspired UNCLOS is not an avenue open to us. Basic principles of treaty interpretation—both domestic and international—direct courts to construe treaties based on their text before resorting to extraneous materials. See United States v. Alvarez–Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.”); Vienna Convention on the Law of Treaties, art. 32, May 23, 1969, 8 I.L.M. 679, 692, 1155 U.N.T.S. 331, 340. Because international law permits prosecuting acts of aiding and abetting piracy committed while not on the high seas, the Charming Betsy canon is no constraint on the scope of Count Two.

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2. Piracy and the Presumption Against Extraterritorial Effect Ali next attempts to achieve through the presumption against extraterritoriality what he cannot with Charming Betsy. Generally, the extraterritorial reach of an ancillary offense like aiding and abetting or conspiracy is coterminous with that of the underlying criminal statute. Yakou, 428 F.3d at 252. And when the underlying criminal statute's extraterritorial reach is unquestionable, the presumption is rebutted with equal force for aiding and abetting. See United States v. Hill, 279 F.3d 731, 739 (9th Cir.2002) (“[A]iding and abetting[ ] and conspiracy … have been deemed to confer extraterritorial jurisdiction to the same extent as the offenses that underlie them.”); see also Yunis, 924 F.2d at 1091 (analyzing underlying offenses under extraterritoriality canon but conducting no separate analysis with respect to conspiracy conviction). Ali admits the piracy statute must have some extraterritorial reach—after all, its very terms cover conduct outside U.S. territory—but denies that the extraterritorial scope extends to any conduct that was not itself perpetrated on the high seas. We note, as an initial matter, that proving a defendant guilty of aiding and abetting does not ordinarily require the government to establish “participation in each substantive and jurisdictional element of the underlying offense.” United States v. Garrett, 720 F.2d 705, 713 n. 4 (D.C.Cir.1983). A defendant could, for example, aid and abet “travel[ing] in foreign commerce [ ] for the purpose of engaging in any illicit sexual conduct with another person,” 18 U.S.C. § 2423(b), without himself crossing any international border. Cf. Raper, 676 F.2d at 850.

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Notes

1. Piracy U.S. Prosecutions in Digest of United States Practice in International Law