Pirates Need to Do Something: A Note on Veggie Tales

My previous post on Greenpeace got me thinking about pirates and piracy in general, which in turn caused my thoughts to wander to the days of my childhood when being a pirate sounded like an enjoyable and feasible career option.  Not all pirates seemed romantic, however, especially "The Pirates Who Don't Do Anything."  These pirates were originally described in this Veggie Tales song:

I have learned that the band, Reliant K, released a version of this song, but I'm not at all familiar with the band or the song so I'll leave you to figure out which version is better.

My foray into piracy law for purposes of my last post made me wonder how the Pirates Who Don't Do Anything could ever exist.  As the Ninth Circuit noted in Institute of Cetacean Research v. Sea Shepherd Conservation Society, Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
           (i) on the high seas, against another ship or aircraft, or against persons or property on                    board such ship or aircraft;
           (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any                  State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This definition of piracy caused me to question the Veggie Tales song.  UNCLOS clearly indicates that pirates must do something, namely engage in illegal violence, detention, or depredation, in order to be defined as pirates in the first place.  If an individuals just "stay home and lay around," they cannot engage in piracy.

Veggie Tales may not be entirely without an argument here, however.  Eugene Kontorovich notes in his article, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, (45 Harv. Int'l. L.J. 183, 2004) that piracy has historically been a universal offense in the international law context.  He further notes in this article that the universal, historic punishment for piracy was death.  The Restatement (Third) of Foreign Relations Law, section 404, comment f states, "a universal offense is generally not subject to limitations of time," indicating that there is no statute of limitations on universal offenses (Judge Kleinfeld pointed this out in his dissent in the later-vacated Ninth Circuit case, Sarei v. Rio Tinto, PLC, 671 F.3d 736, 817 n.128).

The upshot of all of this is that while the Pirates Who Don't Do Anything may not currently do anything but stay home and lay around, if they ever engaged in piracy before, they may still be prosecuted for that piracy.  Notably, none of the singing vegetables ever deny that they ever engaged in illegal violence, detention, or depredation.

If carrying out an act of piracy leaves somebody with a permanent threat of prosecution for that offense, I think that this person (or vegetable) is well within his or her rights to label himself or herself a pirate.