1 525 F.3d 709, cert, denied, 129 S.Ct. 324 (2008).

2 Mar. 10, 1988, 1678 UNTS 201, reprintedin 27 ILM 668 (1988) (entered into force 1992; also known as the “Rome Convention”).

3 See Martin, Murphy, Piracy and UNCLOS, in Violence at Sea: Piracy in the Age of Global Terrorism 178 (Peter, Lehr ed., 2007)Google Scholar.

4 See Rubin, Alfred P., The Law of Piracy 127–200 (2d ed. 1998)Google Scholar; Menefee, Samuel Pyeatt, Yo Heave Ho!”: Updating America’s Piracy Laws, 21 Cal. W. Int’l L. J. 151, 153 n.12 (1990/91)Google Scholar.

5 Though not the first modern use of universal jurisdiction, it is the first use of criminal universal jurisdiction over conduct that international law makes universally cognizable. Under the Maritime Drug Law Enforcement Act, 46 U.S.CA. §§70501–70507 (2000 & Supp. V 2005), the United States regularly prosecutes foreign drug traffickers caught on the high seas in foreign–flagged vessels with no demonstrable connection to America. See Eugene, Kontorovich, Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 Minn. L. Rev. 1191 (2009)Google Scholar. However, international law does not regard drug trafficking as universally cognizable, and the United States’ treatment of it as such is idiosyncratic. See id.

6 See generally Eugene, Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45 Harv. Int’l L.J. 183 (2004)Google Scholar (discussing the relation between piracy and modern universal jurisdiction crimes).

7 See infra text accompanying notes 21–27.

8 Appellant’s Brief at 45, 2007 WL 881125.

9 United States v. Shi, 396 F.Supp.2d 1132 (D. Haw. 2003) (order).

10 Id. at 1135–36. While this holding reflects a straightforward reading of the text, it is significant that the court did not find any implied jurisdictional hierarchy or complementarity requirements.

11 United States v. Shi, 396 F.Supp.2d 1136, 1136 (D. Haw. 2005) (request for reconsideration).

12 Id. at 1136.

13 Malvina, Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 AJIL 269, 269 n. (1988)Google Scholar.

14 396 F.Supp.2d at 1137 (request for reconsideration).

15 396 F.Supp.2d at 1134 (order).

16 Art. 3(l)(a)–(c). This lack of reference is not surprisingly since there is still no established international legal definition of the concept of terrorism.

17 396 F.Supp.2d at 1134–35 (order); see 396 F.Supp.2d at 1138 (request for reconsideration). The Ninth Circuit affirmed this conclusion with no additional discussion (see p. 726).

18 Appellant’s Brief, supra note 8, at 32–33. His argument here relied on cases decided in 1820 under the 1790 Crimes Act. The Supreme Court there held that the statute could not have been intended to apply U.S. jurisdiction to purely foreign crimes that were not universally cognizable. See generally Eugene, Kontorovich, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NW. U. L. Rev. 149, 185–91 Google Scholar (arguing that the 1820 piracy cases show Congress lacks power under the Piracies and Felonies Clause to legislate against non–universally cognizable crimes on the high seas, but noting that the treaty power would often provide authorization for such legislation). Unlike that situation, the SUA Convention clearly gives the United States jurisdiction over crimes like Shi’s, and it seems likely that Congress intended to exercise this jurisdiction to the fullest extent.

19 18 U.S. (5 Wheat.) 153, 161–62 & note h (1820).

20 UN Convention on the Law of the Sea, Art. 11, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted w21 ILM 1261 (1982).

21 This requirement is often cited as an obstacle to prosecuting terrorists that come on board as crew or passengers, as was the case on the Achille Lauro; the SUA Convention has no such limitation.

22 See the comment by the Dutch government on Article 14, 1956 (2) Y.B. Int’l L. Comm’n 64 (“The community of States need not interfere with a change of authority on board the ship so long as the acts of the mutineers are not directed outwards.”).

23 Id. (noting division of authority among treatise writers).

24 See Commentary to the Articles Concerning the Law of the Sea, 1956 (2) Y.B. Int’l L. Comm’n 265, 282 (Art. 39, cmts. 1 (vi) (“Acts committed on board a ship by the crew or passengers and directed against the ship itself, or against persons or property on the ship, cannot be regarded as acts of piracy.”), 6 (“Even where the purpose of the mutineers is to seize the ship, their acts do not constitute acts of piracy.”).

25 China commented as follows, 1956 (2) Y.B. Int’l L. Comm’n 43 (cmt 2):

26 Lassa, Oppenheim, International Law: A Treatise §276 (1905)Google Scholar (emphasis added) (“The crew or passengers who, for the purpose of converting a vessel and her goods to their own use, force the master . . . to steer another course commit piracy as well as those who murder the master and steer the vessel themselves.”); see also Halberstam, supra note 13, at 284 – 85 (suggesting that the LOS Convention’s rapporteur intended to reflect Oppenheim’s position).

27 Henry, Wheaton, Wheaton’s Elements of International Law 194 n.83 (Dana, Richard Henry ed., 8th ed. 1866)Google Scholar.

28 327 F.3d 56 (2d Cir. 2003) (per curiam).

29 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 UNTS 177, 24 UST 564, reprinted in 10 ILM 1151 (1971).

30 Compare the Ninth Circuit’s analysis (p. 724) with Yousef at 111–12.

31 396 F.Supp. at 1135 (order).

32 See Eugene, Kontorovich, Why the Piracy Police Isn’t Working, Opinio Juris (Feb. 9, 2009)Google Scholar, available at http://opiniojuris.org/2009/02/09/why–the–piracy–police–isnt–working/.

33 These changes have not yet entered into force. See Helmut, Tuerk, Combating Terrorism at Sea—The Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 15 U. Miami int’l & Comp. L. Rev. 337, 354–66 (2008)Google Scholar. It is peculiar that international diplomats expended considerable efforts in marginally beefing up a convention that has apparently never been used to prosecute any terrorists. There are more additional protocols to the SUA than there have been cases under it.

34 See Eugene, Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, ASIL Insights (Feb. 6, 2009)Google Scholar, at http://www.asil.org/insights090206.cfm.

35 See SC Res. 1846 (Dec. 2, 2008).

36 See Kontorovich, , supra note 34 Google Scholar; Sarah, Childress, Pact with Kenya on Piracy Trials Gets First Test, Wall St. J. (Feb. 17, 2009)Google Scholar, available at http://online.wsj.com/article/SB123482019865794481.html#printMode.

37 See Commentary to the Articles Concerning the Law of the Sea, supra note 24, at 283 (commentary on Article 43; emphasis added) (“This article gives any State the right to seize pirate ships . . . and to have them adjudicated upon by its courts. This right cannot be exercised at a place under the jurisdiction of another State.”)

38 See SUA Convention, supra note 2, Arts. 6(1) (allowing any state party to prosecute defendants found in their territory), 8 (allowing suspects to be turned over to any state party by master of vessel), 11 (allowing for extradition of suspects to any flag state).

39 Brief of Plaintiff–Appellee United States of America at 3,2007 WL 1511823 (the entire crew had been arrested on material witness warrants).

40 Travis, Kavulla, Prosecuting Captured Somali Pirates Poses Challenges (Nov. 26, 2008)Google Scholar, at http://www.foxnews.com/story/0,2933,457827,00.html.

41 Michael, Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti–piracy Operations, 40 Vand. J. Transnat’l L. 1, 36, 48 (2007)Google Scholar (describing first trial in Kenya of Somali pirates captured by United States).