WHAT TO DO ABOUT PIRACY?
http://thebulletin.us/articles/2009/04/21/commentary/op-eds/doc49ed507c06542421399726.txt  OR
http://www.fpri.org/enotes/200904.owens.piracy.html
By Mackubin Thomas Owens, Foreign Policy Research Institute Senior Fellow
Reviewed by James L. Abrahamson, Contributing Editor

According to the International Maritime Bureau, 293 incidents of piracy or armed robbery occurred in 2008, almost half of them along the Indian Ocean and Gulf of Aden coasts of Somalia. Writing for Orbis, which he edits, Naval War College Associate Dean of Academics Mackubin Thomas Owens assesses the threat of that Somali piracy, describes possible responses, and from a review of international law’s history draws insight into that issue as well as modern terrorism.

With but three exceptions, the world’s principal response and that of its shipping companies has been to gain the release of crews and ships by paying million dollar ransoms to pirates and larger fees to insurers, which drives up the cost of global seaborne commerce. As Somali pirates succeeded in only 50 of their attempts last year, as compared to 21,000 passages through Somalia’s seas, many regard those as costs worth paying. With 1300 miles of Somali coast line and a sea area four times the size of Texas to patrol, no mélange of a few dozen ships from the United States, the EU, NATO, Russia, China, India, Saudi Arabia, and Malaysia can hope to overcome the pirates at sea. Even arming the merchant ships, training their crews in weapons, or protecting them with armed detachments onboard seem costly and ineffective.

Turning to history, Owens argues that piracy – like African slavery – has only been wiped out when the world’s sea powers attacked the bases from which the pirates – and the slavers – operated. From the seventeenth through the nineteenth century, international law facilitated such armed action. Not so today. As modern international law began to emerge in the sixteenth century, it borrowed from Roman law distinguishing between bellum (war with legitimate enemies) and guerra (war against pirates, brigands, outlaws, and other common enemies of mankind). The former conflicts defined the standard for interstate conflict, its rules, and protections for participants and civil populations alike. None of those applied to the guerra, all those using illegitimate or informal violence in a predatory manner and without lawful (state) authority. As Grotius wrote in Mare Librum, “all peoples or their princes in common can punish pirates.”

Reviving that distinction and its remedy suggests a twenty-first century means to defeat and deter piracy – and perhaps terrorism as well. As the United States in the early nineteenth century dealt with the Barbary pirates and the brigands who raided its territory from Spanish Florida, every government should be free to strike the bases and territory of any nation that fails to control pirates and other predators operating out its territory. Only modern “legalism and moralism” have twisted the rule of law in ways that preclude meaningful and rightful self defense against those who operate outside the law and with no regard for its limitations on the use of violence. Americans, Owen urges, must develop a new “mindset” and energetically attack “‘the common enemies of mankind,’ which include not only pirates but also terrorists.”