On Saturday, Somali pirates seized an oil tanker in the Indian Ocean in one of the largest seaborne hijackings in history. The incident is just the latest in an increasing number of brazen pirate attacks, with the Somalia-based scoundrels targeting two more ships and the sinking of a pirate "mother ship" on Tuesday.
The capture of the Sirius Star -- laden with over 2 million barrels of oil, the vessel weighs three times as much as an American aircraft carrier and is just as long -- took place roughly 450 nautical miles off the coast of Kenya and has international naval units scrambling to come up with an appropriate response. Including cargo, the U.S.-bound tanker is estimated to be worth more than $100 million, as it contains about a quarter of Saudi Arabia's daily oil output. (The BBC reports that the owners of the ship, Vela International Marine, a subsidiary of Saudi Aramco, have started negotiations with the hijackers.)
We called Foley Hoag partner Paul Reichler in Ecuador, where the codirector of the firm's international litigation and arbitration practice group is on business, to talk about the pirate attacks and to consider the implications for sovereigns and shipping companies.
Have any of your current clients reached out to you about this issue?
I can't say that anybody has come to us yet. What I can say is that piracy is a crime against the law of nations and has been recognized as such for centuries. Pirates can be apprehended and prosecuted in any country. But if pirates are holding ships and crew hostage, how do you do that in a way that doesn't prove catastrophic for any of the hostages held and states involved?
Sounds like a challenge for the new administration.
It sure figures to be one of the first tests for President-elect Obama. An international consensus will have to be built and maintained on a problem that's continuing to affect everybody. If there are non-governmental actors that are sympathetic to the pirates, which it seems there are, then it's a question of which [sovereigns] are willing to do what to deal with the current situation.
Since Somalia is essentially a country without a "state" in the traditional sense, how can captured pirates be prosecuted if their home country remains lawless? Are we looking at another Guantanamo to deal with these individuals?
Most countries would permit the prosecution of pirates wherever they are captured, even if they're outside their own territorial limits. Piracy is a particularly heinous international crime that usually can be prosecuted anywhere. We shouldn't have to create a new Guantanamo, which itself is totally against international law. In the case of pirates, you can apprehend and punish them without creating a new pseudo-category of human being called "unlawful enemy combatant."
But there may be some dispute among [sovereigns] over who wants or gets to prosecute these pirates in their own national jurisdictions. It's also possible that they could be brought before some international tribunal created for the purpose, although that would have to be done by agreement among the states involved.
And you say your clients have been mum on this so far?
Almost all my clients are sovereigns and of course some of them have significant shipping interests. [Our firm] also represents Djibouti, which neighbors Somalia and is a bit too close for comfort. There are a lot of states that would like to see this problem resolved, but they want to do it in a way that entails a minimal amount of bloodshed.
So no new big issues from an international legal perspective?
The issue here really is not a legal problem -- the laws are very clear on [piracy] -- but developing practical and political solutions. How do you catch these guys? There is a need for collective action because a lot of states are affected by this, as well as private companies. But states defend the interest of their nationals, so it's becoming a public issue that increasingly affects the entire international community.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.