Monthly Archives: September 2009

Here, Have Some More Pirates — Part I

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Sadly, with regards to the hijacking of the Arctic Sea, as of yet there does not appear to be a factual basis for any truly interesting questions of jurisdiction, despite the proliferation of nations involved with strong jurisdictional claims over some or all of the hijacking. Russia has asserted full jurisdiction over the incident, and at the moment it does not appear any other nations are objecting. The hijackers, now in Moscow, have been charged under the Russian criminal code for piracy and kidnapping:

“On the strength of the gathered evidence, seven captors have been charged with complicity in the commission of the crimes covered by Article 227, Part 3 and Article 126, Item “a”, Part 3 (piracy and kidnapping committed with the use violence and arms by organized group). The eighth suspect has been charged with masterminding the above crimes,” Markin said.

However, it looks as if the hijackers themselves have been making noises about the propriety of Russian jurisdiction over them, both under international law and domestic Russian law:

According to Russian media, hijacking suspects say their case should be heard not in Russia but in Malta, or Sweden – in whose Baltic Sea waters the alleged hijacking occurred. But Bastrykin stressed that Russia now has jurisdiction over the ship and the suspects.

“We have the full legal right to conduct investigative activities with both the ship and its crew,” he was quoted as saying.

Egons Rusanovs, a lawyer at Rusanovs and Partners, says:

Russia has no relation to the current preliminary investigation into this case. This fact contradicts concrete norms of international law, in particular, the convention on maritime law adopted in 1982. This case should be under jurisdiction of either Malta or Sweden.

Dmitry Pronin, a lawyer who represents detained Latvian citizen Vitalij Lepin, believes that “this arrest is illegal and it’s without ground, because in accordance with the Russian Criminal Code, the type of punishment should be decided within 48 hours after the factual detention. In this case it took four days to specify the preventive punishment.”

It’s hard to know if there’s any weight to the hijacker’s arguments without more than that, but I’m highly skeptical about their chances of prevailing on that front. Under the Article 105 of the UN Convention on the Law of the Sea (“UNCLOS”),

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, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

This article reflects longstanding customary international law that grants universal jurisdiction over all acts of piracy on the high seas, and that any state may capture and punish pirates wherever they may be found where they are outside of any other state’s territory. Assuming Russia did capture the Arctic Sea in international waters, Russia is soundly exercising its universal jurisdiction by bringing the pirates to Moscow to stand trial under Russian law. I expect the hijackers are trying to argue they were never pirates in the first place, and so Article 105 is not applicable, but that’s questioning the factual basis of jurisdiction, not the legal basis.

Moreover, while it is hard to get a straight story on the nationalities of the hijackers, all of the Arctic Sea’s crew were Russian, and the hijackers were themselves either Russian or stateless people who habitually lived in Russia. Under Article 6(1)(c) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, this gives Russia some degree of an international obligation to establish jurisdiction over the pirates, and under 6(2)(a) and (b) clearly had the right to exercise such jurisdiction if it chose to do so.

So if Russia captured the pirate on the high seas, under a combination of passive personality jurisdiction, active personality jurisdiction, universal jurisdiction, and specific grants of jurisdiction under treaties, there is little argument to be made that Russia does not properly have jurisdiction over the pirates.

However, an important question that I’ve not seen definitively answered yet is where exactly in the Atlantic the Arctic Sea was captured by the Russian warship. Was it on the high seas, or in Cape Verde’s territorial waters? UNCLOS provisions on the seizure of pirates extend only to the high seas. Once in a nation’s territorial seas, authorization by the coastal state is required before any such enforcement action can be taken.

All I’ve been able to find on the exact location of the recapture is this:

“I have a report from the Russian Navy that the frigate is going to enter Cape Verde territorial waters,” Alexander Karpushin told the Russian News Service. “The warship has its own search plan.”

Cape Verde has declared that its territorial seas extend to the full 12 miles permitted under international law (see here [DOC]). Although the Russian warship would have had a right of innocent passage within that 12 mile territorial sea if the actual capture took place inside that limit, the question of jurisdiction gets trickier:

“[I]t is universally accepted under international law that law enforcement officials of one state may not act to enforce their laws in areas within the territorial sovereignty of another state. Therefore, the naval vessels or marine police from one state may not enter the internal waters, territorial waters or archipelagic waters of another state to patrol for pirates or to arrest persons for acts of piracy, regardless of where such acts took place.”

Of course, even if the Arctic Sea was in Cape Verde’s sovereign territory, Russia might well have obtained Cape Verde’s authorization before undertaking the capture. In part II of this post, I’ll take a look at what the legal status of Russian jurisdiction might be under the hypothetical scenario that no such authorization was sought or obtained.

-Susan

Comedy Break

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On torts-guru John Banzhaf:

“I can’t believe this guy is a law professor at a major university” states Barbara Jenkins. “It is a sad day when they allow someone with such a lack of credibility teach law to our young men and women, he sues people and organizations with no basis, just to cost them attorney and court cost to benefit Pfizer and anti-American practices, even politicians look at him as a leach on society.

“ASH has received millions in funding directly from Pfizer as a “partner” according to this post on a blog. This brings serious questions about the credibility of Pfizer’s tactics by using an attorney that is proud to be referred to as “communist” and lacking real legal skills to the point that a Congressional House Committee conducting a hearing about John Banzhaf’s frivolous lawsuits commented that the best way to beat John Banzhaf was to “simply let him keep speaking.”

and,

Attorney Banzhaf hopes soon to see smokers incarcerated in smoke-free prisons or even to realize his life’s ambition of frying them in an electric chair for the crime of smoking tobacco[.]

Check out this line from the second quote: “according to this post on a blog.” That has got to be the most amazing citation I’ve ever seen. I’m going to use that from now on whenever I’m having trouble finding a source to back up a claim — of course it’s true, I saw it on this post on a blog once!

And say what you will about Banzhaf, but the man’s got the most terrifying volleyball spike I’ve ever seen in a law professor.

-Susan

Temporarily Out of Fashion: Somalian Piracy. Temporarily In Fashion: Viking Piracy.

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I realized this morning, to my intense disappoint, that International Talk Like a Pirate Day was yesterday, and I completely missed it. This won’t happen again, I’ve already programmed it into my phone so there’s no chance of me missing it next year. But to make up for my laxness, I’m declaring today International Pirate Blogging Day and celebrating that by giving an update on the somewhat under-reported story of the Arctic Sea. The Arctic Sea was captured by pirates last July before going MIA on an ocean voyage from Sweden to Africa, and the theories surrounding the whole incident sound suspiciously like the plot of Dan Brown novel.

The (roughly known) facts: The Arctic Sea is a Maltese-flagged ship, owned by a Finnish company, which is in turn owned and run by a Russian citizen living in Finland. which when the hijacking occurred had left port from Finland bound for Algeria, with a cargo of timber (owned by a separate company also controlled by the same Russian citizen who owned the ship) worth $1.7 million on board. Around July 24, the Arctic Sea was then captured off the coast of the lawless, warlord controlled territory of Sweden, but this was not reported publicly. Contact was lost with the ship around July 31, during which time the ship chugged down through the English Channel, around the Iberian peninsula, and then remained missing for a number of weeks. On August 17th, Russia successfully recaptured the ship off the coast of Africa near the island nation of Cape Verde. There were no reported injuries. The eight (ten?) hijackers are apparently ethnic Russians, who speak English, and are either stateless or hold passports to Russia, Latvia or Estonia. As an additional point of confusion, when captured off of Africa the ship’s captain “unexpectedly claimed” to be the North Korean ship Congdin 2, en route from Cuba to Sierra Leone — but as far as I can gather, essentially no one has any idea what the hell that was all about.

Russia announced it would be taking the ship back to a Russian port. Instead, the ship next turned up at the Canary Islands, where it remains in limbo as Spain continues to refuse entry to the Arctic Sea. Malta, where the ship is flagged, has been involved in the negotiations but apparently wants to wash its hands of the whole thing. Russia is less than pleased, and announced that:

“The decision of the Maltese authorities has puzzled the Russian Investigative Committee. Moreover, it contradicts international maritime law. The Maltese action makes the ship docking in the Spanish port of Las Palmas problematic. This also creates problems for the ship’s crew because they are running out of fuel and drinking water[.]”

Far as I can make out, the ship’s still bobbing about in the waters off of Las Palmas, but transfer of the ship to the original owners is being organized. Meanwhile, all the pirates are back in Russia and are currently facing prosecution.

The conspiracy theories: There are dozens of theories out there, but the major claim being made seems to be this whole deal was really about “Russian mobsters selling missiles and/or air defense shields to Iran.” The most convoluted of these tales involve Israel’s Mossad being responsible for the diversion of the ship’s trip to Iran:

Another theory is that Mossad concocted the alleged hijacking by setting up a criminal gang, who were unlikely to have known anything about a secret cargo, instead blocking the route to Iran by the mounting media interest.

“Once the news of the hijack broke, the game was up for the arms dealers. The Russians had to act,” said a former Russian army officer. “That’s why I don’t rule out Mossad being behind the hijacking. It stopped the shipment and gave the Kremlin a way out so that it can now claim it mounted a brilliant rescue mission.”

One serious problem for fans of this theory: Why the heck would Israel entrust the recapture of an arms smuggling ship to a bunch of drug addicted bar brawlers? (Additional note to the hijackers: Fire your lawyers. No one believes y’all were members of a stranded environmentalist group trying to “document environmental abuses.” If that’s the best cover story you’ve got, you’re in big trouble.)

And while it seems like something fishy was going on, given the extreme shortage of reliable reporting out there, its hard to tell right now if it’s anything more sinister than a bunch of deluded Russians becoming the Keystone Kops of the piracy world. Because this was the most incredibly awkward ship hijacking the world has seen since Blackbeard was a teenager. The only thing clear about this whole mess is that the pirates were basically a bunch of dogs chasing a car, and they had no idea what to do with the ship once they actually captured it. So they just decided to cruise it down to Cape Verde for the heck of it.

However, combined with recent diplomatic trips by Israel’s president to Russia to discuss Iranian relations the day after the Arctic Sea was found, as well as the cancellation of the U.S. missile shield plans in Poland and the Czech Republic, there’s enough fodder there for the conspiracy theorists to last them for months.

-Susan

A “Tired” Argument…

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Yuk yuk. Oh god, that one was really bad. Okay, I promise, there will be no more puns in the future.

But I’ve only just come across this article, “Obama can help free trade with tariffs,” and it’s managed to sufficiently irritate me enough that I can’t let it pass by without comment. We know now that Obama did, in fact, agree to the 35% increase in tariffs on Chinese tires. It was a poor decision, and I have my fingers crossed that this was an ugly unicorn of a decision that won’t be seen again.

But Prestowitz’s article is full of WTF.

The orthodox free-trade view of most pundits holds that if Mr Obama accepts the recommendation he will fail the free-trade test. In fact, the truth is just the opposite. Not to accept the tariff recommendation would be a severe blow to open trade and globalisation as well as to America’s future economic health.

The phrase “extraordinary claims call for extraordinary proof” comes to mind, but Prestowitz sure doesn’t deliver it. On why not imposing barriers to trade is not desirable, he writes:

This kind of trade is not win-win. Rather it is a classic zero-sum game. It is well-known to game theorists that in such situations a tit-for-tat response is the optimal strategy.

Horsedroppings. The ‘optimal strategy’ in any given trade situation is going to depend on what sort of strategy the other 190-odd players on the world market are going with. I seriously doubt that there’s any game theorist anywhere that has declared “in a classic zero sum game, always go with tit-for-tat.” (And for that matter, he’s not even come close to actually showing this is a “classic zero sum game” in the first place!)

But even if Prestowitz were right about the above, game theory alone is completely inadequate for making the sort of decision Obama just made. There are going to be serious political and diplomatic repercussions from the imposition of the tire tariff, and the last thing the U.S. wants to be doing right now is to be setting a precedent for the rest of the world that hard economic times justifies the enactment of short sighted and petty trade restrictions.

-Susan

Update: An economist responds to Prestowitz’s argument.

While Lolcats are the future of capitalism, check out Rolcats for proof that even Communism is not immune from the funny cat picture epidimic.

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Failblog is brought up enough in conversation with people roughly my age that I’m pretty sure it’s not too embarrassing for me to publicly admit to reading it. But this still blows my mind: failblog and the associated webpages (hi there, lolcats) are an impressively profitable economic enterprise. How profitable? This post on The Economics of LOLCats has some good detailed information and hard numbers on just how much lolcats is bringing in, but here’s the most impressive statistic:

Now, consider that iCanHasCheezBurger contributes 5% to WordPress.com Unique user traffic, slightly more of its visitor pie. WordPress raised nearly $30,000,000 in financing, so we can losely say LOLCATs are worth 5% of that, or $1,500,000.

And the best part? All of Lolcat and Failblog’s content is produced by the consumers. And they produce it for free. (Somewhere, Marx is rolling in his grave about this flagrant undervaluing of labor…) And further note that these consumers happen to be members of a highly valuable demographic group, and who will quickly snap up any lolcat-related with equal fervor.

Failblog has a clip up giving a tour of the Failblog Headquarters — a spartan wall-less warehouse populated by what looks to be refugees from a Google POW camp — which proves that this isn’t some experimental off-shoot of Time-Warner. It’s just a bunch of kids who sit around all day going, “Hey, you know what people want to see? Funny redneck engineering!” And bam. Another phenomenon is born. All content generated by the internet hivemind.

Technology is amazing. For everyone who thought that the future would bring us flying cars and a cure to cancer, sorry. We got lolcats instead.

To prove that our economy has been taken over by lolcats, note that even Paul Krugman has fallen victim to their tiny kitten chokehold.

-Susan

A Wiki Proposal.

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I love Wikipedia. I have yet to try citing it in anything more formal than a blog comment, but it’s almost always my first stop whenever I’m looking up something new. It’s a one way love affair, though: despite my frequent use of the encyclopedia commons, I’ve never done much to contribute. I actually even have an account, but only use it on the rare occasion I find annoying vandalism on a page that’s off the beaten track, and feel compelled to fix. Like that time some dude apparently felt the need to declare a certain Sumerian king had been, among other things, “the king of dewdy ballz.”

Despite the fact I don’t even contribute to Wikipedia, reading the discussion pages — where editors propose and discuss changes to be made to the encyclopedia’s articles — has long been one of my most effective procrastination strategies. Very rarely is there a page without controversy; it’s like 3,037,332 different soap operas, with a lot of cross-over episodes between articles. There are of course some reliable stand-bys, always good for new drama, such as the never-ending war about Muhammad’s picture, the skirmishes over Conservapedia, and, of course, Scientology. (For my money, though, the most hilarious Discussion debates occur on the economics pages — did you know there’s a nefarious “systematic pro-Keynesian bias throughout WP”?)

But aside from the Internets Drama, I like reading the discussion pages because it feels like watching a small-scale reenactment of international law. When Wikipedia started, it was close to a blank slate in terms of how editor coordination was to be accomplished. Now, not quite a decade later, the repeated interactions of numerous independent editors has lead to the emergence of a body of norms which is widely followed in the Wikipedia community, despite the fact there are only minimal enforcement mechanisms in place. There are dispute resolution processes, customary standards of behavior parties are expected to observe, and means by which parties can generate new rules for the community to follow. The creation of norms is not done by legislative fiat, but rather by the slow accumulation of consensus until a proposed norm obtains the support of and is followed by so many editors that the community as whole begins to act as if they were governed by a rule instead of preference. Sound familiar?

Aside from the organic process by which both systems came to be, there are even a number superficial substantive similarities. Right off the bat, both international law and Wikipedia have a black letter law in common: Presumption of Good Faith.  And both Wikipedia and the United Nations have a policy of “neutrality”… though whether either of them are truly neutral is often held to be suspect, and sometimes for both it’s the very policy of neutrality itself that causes the biggest problems.

Even the conspiracy theories bear certain resemblances. From a Wikipedia article on wiki-governance, “As Wikipedia grows, its governance mechanisms become more complex, and hierarchies of power spring up, both formal (admin, bureaucrat, etc.) and informal (policy wonks, cliques, etc.) Closed decision-making structures, like invite-only IRC channels and mailing lists, are used, creating either the appearance or the reality of one or more cabals controlling Wikipedia processes.” Now let’s try that again: “As international law grows, its governance mechanisms become more complex, and hierarchies of power spring up, both formal (regional organizations, UN subcommittees, etc.) and informal (the community of international law scholars, diplomatic channels between nations, etc.) Closed decision-making structures, like the G-8 and the Security Council, are used, creating either the appearance or the reality of one or more cabals controlling international law processes.”

I know I am already at risk of taking this analogy way too far. But customary international law is, like Wikipedia’s editing policies, an example of emergent behaviors that have developed themselves into a system of rules and sanctions.  Although both systems do have some kind of external enforcement mechanism that can impose rules top-down, it’s the behavioral patterns that developed bottom-up that have always been the prime movers — ultimately, if nations or editors cease to act in a way consistent with a law delivered from a top-down authority, it’s the law that loses. In Wikipedia terms, this means “If a rule prevents you from improving or maintaining Wikipedia, ignore it.” In international law, we just call this lex ferenda.

On a similar vein, there’s another parallel here: as both Wikipedia and International Law have become more established, the degree to which top-down structures have taken over the rule-making processes has likewise increased. For instance, Wikipedia no longer allows entirely anonymous editors, and UN bodies now make pronouncements on how states should treat their citizens, even where no CIL had developed.

To make a long story short, this whole post proves, ipso facto, that what international law needs now is the creation  of http://www.WikiCIL.un.org. Henceforth, customary international law will be developed by wiki pages. Nations will create pages when they wish to propose a new customary international law, and also edit existing ones — either to “clarify” the rule’s “true meaning” or, for the bolder editors, to simply declare the old rule to be n00bish and submit a new one to replace it. Sure, there’ll be the occasional flame war and editing duel, but eventually consensus will be reached, and pages will stabilize as nations agree on what the content of customary international law is.

And as a bonus, it’ll also simplify the international dispute resolution process. Is the United States trying to develop a complicated justification for invading Iraq? Just slap a warning on the U.S.’s editor page warning them not to engage in WikiLawyering, i.e., “Misinterpreting policy or relying on technicalities to justify inappropriate actions.”  Is the U.N. lacking in accountability and getting itself involved where it is way over its head? Just give them a friendly pointer over to W:AIC. Is North Korea saying something? Try here.  Problem solved.

-Susan