LawFare – While U.S. piracy law has largely stagnated since 1820, international law has evolved. Now it’s time to catch up. The “golden age” of piracy may have ended in the 17th century, but the scourge continues to the present day from the Red and Somali seas to the Gulf of Guinea, wreaking havoc on the global economy, amassing an unspeakable human toll, fueling and financing terrorism and other crimes, and triggering a cascade of increasingly alarming activity. In February 2024, the U.S. State Department issued a statement condemning recent missile and drone attacks by Houthi rebels on ships in the Red Sea from Houthi-controlled territory as “piracy”; however, it is unclear which definition of piracy the department invoked. In fact, as the latest report of the Special Rapporteur at the International Law Commission of the UN on Prevention and Repression of Piracy and Armed Robbery at Sea (Special Rapporteur) highlights, it is unclear whether the rebels’ conduct could be construed as piracy at all. Countries and the polities that came before them have coordinated efforts to fight piracy since as early as 1400, viewing pirates as hostis humani generis, or “enemy of all mankind.” In 1982, modern nation-states etched their commitments to cooperate in ending piracy into the proverbial stone. Today, 169 parties have ratified the United Nations Convention on the Law of the Sea (UNCLOS) and its Article 101, defining piracy. The United States, however, is not one of them. Nevertheless, the U.S. largely abides by UNCLOS’s terms, considering it representative of customary international law, and is party to the 1958 Convention on the High Seas (HSC), the language of which regarding piracy was largely retained in UNCLOS. The U.S. Congress, empowered by the express authority to define “piracies” under Article I, § 8, cl.10 of the U.S. Constitution, has also provided for both criminal penalties and civil remedies for piracy by reference to the “law of nations.” U.S courts have sought to elucidate the phrase since 1820, with the recent trend in the circuit courts being to adopt UNCLOS’s definition of piracy, treating it as emblematic of current customary international law. Unfortunately, lower court judicial interpretations only go so far. As a result, U.S. piracy law has remained frozen in time since its enactment and, while certain circuit courts may seek to chart their own path, disunity and confusion due to the lack of judicial and legislative updating at the highest levels may nevertheless hinder the dispensation of justice. Furthermore, independent action by circuit courts does nothing to bring U.S. piracy law into greater accord with piracy jure gentium—or to keep courts from circumnavigating its limitations…”