With piracy on the seas increasingly becoming a major problem for international trade, one that is particularly difficult to deal with because of highly restrictive rules of engagement of the world’s most powerful navies (as Gordon discussed), perhaps it is time to dust off a solution that was effective the last time piracy was a serious issue. I speak of the letter of marque and reprisal, which Wikipedia helpfully defines as
an official warrant or commission from a government authorizing the designated agent to search, seize, or destroy specified assets or personnel belonging to a foreign party which has committed some offense under the laws of nations against the assets or citizens of the issuing nation, and has usually been used to authorize private parties to raid and capture merchant shipping of an enemy nation.
Such warrants were particularly important for fighting piracy in the early days of the American colonies and Republic, and the right of Congress to grant them is enshrined in Article I, Section 8 of the Constitution. The last time America extensively used letters of marque (against foreign enemies of war, not pirates) was in the War of 1812. Significantly, however, the U.S. was not a party to the 1856 Declaration of Paris, the treaty that abolished privateering for many countries, including Britain and France. And in an odd piece of trivia, the U.S. did in fact issue a letter of marque to Resolute, a privately-run airship that assisted with anti-submarine warfare during World War II.
Who could Congress set up as privateers today? Mercenary corporations such as Blackwater, despite the serious concerns about them, are one obvious choice. Blackwater, in fact, is already protecting merchant ships through its recently created subsidiary, Blackwater Maritime Security Solutions, which has the ability to deploy attack helicopters from its ships. (Admittedly, the company has a sinister-sounding name, reminiscent of the cover corporation James Bond worked for in Ian Fleming’s novels: Universal Exports, Ltd.)
Letters of marque would allow proactive measures against pirates, unlike than the current law, which merely permits merchant shippers to act defensively. Of course, there is the crucial question of whether non-state actors, even of the mercenary variety, would accept the legal risks that attend to capturing or attacking, on the high seas or in territorial waters, the citizens of other countries—even though pirates are “enemies of humanity” under international law. While privateers could not be prosecuted under the law of the country that commissioned them, other countries might attempt to seize them and/or their vessels as well as attempt extradition. (This was a problem even in the heyday of privateering.) And of course there are inherent risks to innocents whenever we allow preventive or retributive force to be used without prior adjudication.
I’m far from an expert in admiralty or international law, but I hope that the option of bringing back privateering is at least considered by individual states and, for still stronger reasons, the international community.