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90 Tul. L. Rev. 805 (2015-2016)

handle is hein.journals/tulr90 and id is 855 raw text is: The Dread Pirate Wo? Challenges in Interpreting Treaties and Customary International Law in the United States Tara Helfman* This Article examines the unique interpretive and constitutional challenges presented by recentmanrmeopiracy cases n the United States. Federal lawdefmespiracy by reference to the law of nations, or customary international law. Because customary international norms may change overtime, the US phacy statute effectively codifies a dynamic definition of the criminal offense into domestic law Federal courts historically ba ve ascertained the substantive content of norms of customary international law through an empirical enterprise examiingstateptactce andopiniojuris sive necessitatis. However, in recent years federal courts have instead defered to the Executves view that amcle 101 of the UN Convention on the Law of the Sea is a codification ofpiracyjure gentium. In theprocess, some courts have treated the treatypovision as a current, authoritative, and exhaustive defimition ofpiracy Itis argued that tis approach is deeply problematic, not least because it has led courts to pioritize the text of a traty to which the United States is nota party over actual state pmrctice andopinionjuris. ThisArticle therefore recommends a two-step approach to ascertaining the meaning ofpircyjure gentium that gives all deference due to the Executive without abdicating the essential functron of the judiciary in saying what the law-in this case, international law-is. I. INTRODUCTION ............................................................................. 806 I. PIRATES INTHE COURTS ............................................................... 811 A. Maritime Piracy Under US. Law ...................................... 811 B. Opening the Door to Customary International Law ........ 813 1. Scenario 1: Piracy as High-Seas Theft? ................... 814 2. Scenario 2: Facilitation as Piracy? ........................... 815 3. Scenario 3: High-Minded Piracy? ........................ 816 * © 2016 Tara Helfman. Associate Professor, Syracuse University College of Law. The author is grateful to the participants in the 2013 Meeting of the American Society of International Law's International Law in Domestic Courts Interest Group, the Young Scholar Workshop of the Yale Law School Chapter of the Federalist Society, the Second Annual Junior Faculty Works-in-Progress Conference at Marquette University Law School, and the Buffalo University Law School Faculty Workshop. The author extends particular thanks to Logan Beime, David Glazier, Meredith Harbach, Oona Hathaway, Chirnne Keitner, Harold Koh, Tara Melish, David Moore, Ryan Scoville, David Sloss, and James Q. Whitman for their invaluable comments on an early draft of this Article. She is also grateful to Ethan Zhong and Nicholas Dwyer for their tireless research assistance. This Article would not have been possible without a generous research grant from Dean Hannah Arterian of the Syracuse University College of Law.

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