International law query

l tend to agree with Eugene Volokh and Kenneth Anderson that the Somali piracy problem might represent an opportunity for the Obama Administration to assert international leadership. I don’t understand the operational issues here, but if Google Earth can show street traffic it shouldn’t be hard to spot pirates.

Apparently part of the problem is what to do with captured pirates, and in particular their potential asylum claims in whatever country catches and tries them.

That raises a question.

When a pirate ship is sunk by naval forces, is there an affirmative duty to rescue the crew? If not, then the question of whether the pirate crews have rights of asylum might not arise. If the duty exists and is triggered by the presence of ships capable of effecting the rescue, then the use of long-range air-to-surface or ship-to-ship missiles might make rescue infeasible.

Update The answer to my query seems to be an unequivocal yes: there is a duty “to render assistance to any person found at sea in danger of being lost . . . .” That’s Article 98 of the Convention on the Law of the Sea, which I don’t think we ever ratified, but it’s also in Art. 12 of the Geneva Convention on the High Seas (1958).

That’s too bad; unlike some of my tender-hearted readers, I have no objection in principle to letting pirates drown, pour encourager les autres. And I don’t see the force of the “due process” objection: while the people being held as “terrorists” may or may not be so in fact, a vessel engaged in piracy is a pirate vessel, and the crew of a pirate vessel consists, by definition, of pirates, who are (along with slavers and torturers) classified in international law as hostes humani generis (“enemies of humankind”).

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: