Pirate ‘gaolbalisation’: Dividing responsibility among states, companies, and criminals

1. Introduction Piracy is the prototypical ‘universal’ offence that injures many nations at once. A pirate attack will directly injure i) the victim vessel's flag state; ii) the victim vessel's owner's state; and iii) the states of the typical multinational crew. Usually, i–iii all involve different countries; and the pirates themselves hail from yet another one. Moreover, pirate attacks result in significant increases in maritime insurance policies for the affected regions, thus spreading the cost of the problem even more broadly. On the high seas, where no nation has sovereignty, responses to piracy require shared responsibility. Alongside shared responsibility among nations, piracy introduces a second axis of distributed responsibility: the division of responsibility between states and private actors. Because pirates act outside of state territory and directly target private interests, the latter have a significant role in the response. For nearly two centuries, piracy has received little attention in international law. Customary prohibitions were codified and somewhat expanded in the high seas regime of the United Nations Convention on the Law of the Sea (LOSC) and its successors, but the subject was generally seen as an anachronism. A significant rise in piracy in several vital shipping lanes since the start of the twenty-first century has led nations to look for new solutions to the old problem, with relatively little legal guidance or recent precedent. Especially in response to the surge in Somali piracy, nations have developed a unique model of shared responsibility that deserves further study. This complex regime has had the advantage of providing a prompt and relatively effective set of solutions to a pressing international problem. It also raises multidimensional problems of shared responsibility between the actors involved. First, private parties (shippers and security companies) have assumed primary responsibility for piracy suppression nominally allocated to states. Second, nations have divided their suppression role both horizontally and vertically, with apprehension, prosecution, and incarceration of suspects each handled by different groups of nations. Let us call this ‘gaolbalisation’ – when globalisation, outsourcing, and off-shoring meet gaol, or jail.