A High Seas Requirement for Inciters and Intentional Facilitators of Piracy Jure Gentium and Its (Lack of) Implications for Impunity

Around 2005, maritime piracy made a troubling resurgence three quarters of a century after a consensus had been reached that the age of piracy had permanently ended. Yet piracy returned in a slightly different form, with pirates relying more on land-based facilitators than their historical counterparts. Maritime piracy’s reappearance made ripe for consideration the question of whether a facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This Article undertakes an analysis of the text, statutory context, history, and policy impetus behind UNCLOS art. 101 as it relates to universal jurisdiction over facilitators. It finds that the weight of the evidence suggests that a high seas requirement in fact exists for facilitators of piracy jure gentium. From there, the article considers the likely implications of such a requirement on modern facilitators of maritime piracy. Through the lens of political economy, the Article asserts that universal jurisdiction piracy prosecutions pose something of a commons problem, or, alternatively, a public goods problem. Because rational actors operating in a market tend to internalize externalities and under-produce public goods, this theory suggests that universal jurisdiction prosecutions should be quite rare, and state practice confirms that hypothesis. In short, this article argues that there is a high seas requirement for inciters and intentional facilitators of piracy jure gentium, but the existence of this requirement is unlikely to affect the impunity of facilitators