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Mark V. Vlasic

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Fighting Pirates With Paper: How the Law of the Sea Is Important in the Fight Against Piracy

Posted: 03/ 1/2012 6:00 pm

It was a beautiful day off the coast of Key West. But while most people would be enjoying the sun and surf of the Keys, I found myself talking about pirates and the Law of the Sea with my hosts on a U.S. Coast Guard cutter, miles from the mainland -- and only 90 miles from Cuba. And while it has been some time since the legendary pirates of yester-year have trolled the Caribbean, a new breed of pirates have been quite active on the other side of the world.

According to Coast Guard Captain Melissa Bert, a Military Fellow at the Council on Foreign Relations, in 2011, pirates attacked over 430 ships with weapons, including rocket-propelled grenades, and held over 500 people hostage, killing eight. And while these attacks are now largely focused in the Gulf of Aden, not around the Florida Keys, their economic impacts are felt around the world. Piracy is estimated to cost the global economy $10 billion a year.

The Gulf of Aden is over 100,000 square miles -- about twice the size of Florida -- which provides ample space for pirates to attack and capture merchant ships. They have not gone unanswered. According to Captain Bert, "U.S. Navy and Coast Guard VBSS [Vessel Board Search and Seizure] teams, and special forces teams from CTF-151 [a combined task force of over 25 countries] have deployed to rescue captured ships and crew from pirates" -- including a recent operation where a U.S. Navy SEAL team rescued two hostages held by pirates in Somalia.

Sadly, no matter how skilled our special forces, our naval forces in the Gulf are still effectively searching for the veritable needle in a haystack, as they patrol a vast region with a relative handful of ships. We cannot fight piracy with our fleet alone. Fortunately, on this issue, the world is on our side, and one of the most powerful weapons available is within our reach.

That weapon is the Law of the Sea Convention, which makes piracy a universal crime, and subjects pirates to arrest and prosecution by any nation.

The good news is that the Convention is supported by countries around the world. The bad news is that the United States has yet to ratify it.

Unfortunately, despite overwhelming bipartisan support in the Senate, and the support of current and retired military leaders, a relatively small number of individuals have stymied the Convention's ratification, for fear that such international agreements diminish American power.

The converse is true.

Our failure to ratify the Convention undermines America's leadership role in promoting the rule of law.

As a country that has promoted the application of international law to prosecute those who violate the laws of nations, from the time of Nuremberg, until today, it is puzzling that we are being left behind by others in the effort to fight the impunity that is so often associated with piracy.

To be fair, the U.S. government has been quite active in piracy cases, but in many ways, our failure to ratify the Convention, which provides the legal foundation to help combat piracy and prosecute piracy cases, leaves our forces to operate in legal waters that are more murky than they need be.

Much has already been written about how our failure to ratify the Convention prevents us from reaping billions of dollars from the rights to oil, natural gas and rare earth mineral resources in our extended continental shelf (indeed, puzzling considering our country's current financial situation). What is left unsaid, however, is how we continually strain our credibility with allies who wish to work with us, despite our failure to ratify the Convention. This tension plays out every day at the International Maritime Organization, where the United States must gain global support to fight piracy, and keep our sea lanes safe and our waters clean.

Perhaps more importantly, our failure to ratify the Convention leaves our men and women in uniform, executing dangerous missions far from shore, on sometimes uncertain ground. On the high seas, a Coast Guard enforcement team chasing a drug smuggling vessel, or pirates in the Gulf of Aden, has little time to question the state of the law.

The Convention removes all ambiguity. It specifically spells out criminal laws and jurisdiction throughout world's oceans. It locks-in freedom of navigation, asserting that no state may subject any part of the high seas to its sovereignty. It gives every state the right to sail ships flying its flag on the high seas, conduct military exercises, fight illicit drug trafficking, and gather intelligence -- all essential to our national defense. For these reasons, our military commanders have long advocated for its ratification.

Indeed, then-Secretary Robert Gates highlighted these issues at the Shangri-La Dialogue in 2011: "The Law of the Sea treaty has no more ardent supporter in the US government than the US Navy... because we do believe that it provides the kind of predictability and set of rules that clarify the rules of the road." Referring to the US Navy's strong preference for the treaty, he noted that, "the sooner we accede, the better off we... will be."

Demonstrating American leadership is often translated into deploying forces to far-away lands - sadly, at times, at great expense in blood and treasure. Ratifying the Law of the Sea will help preserve both, while reasserting America's traditional role as a leader in promoting the rule of law.

Mark V. Vlasic, a former White House Fellow/special assistant to Secretary of Defense Robert Gates, helped prosecute war crimes in The Hague and now serves as an adjunct professor of law and senior fellow at Georgetown University's Institute for Law, Science & Global Security. He leads the international practice at Madison Law & Strategy Group PLLC and serves on the High-Level Piracy Working Group at the Public International Law & Policy Group.