International Law

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Digression o' the Day for April 2, 1999

The Link o' the Day describes the Geneva Convention Relative to the Opening of Hostilities and whether the US must issue a formal declaration of war against Kosovo to fulfill the obligations set forth in that treaty. 

This Digression takes up the much less serious matter of whether a CNN headline stating, "Clinton declares war on software pirates," would violate the US Consitution if its headline were taken literally.

Please note that pairing this light-hearted exegesis of the constitutional text on piracy and on declarations of war, on the one hand, with the discussion of Kosovo, on the other hand, is not intended in any way to downplay or disrespect the seriousness of the situation in Kosovo, where hundreds of thousands of refugees have been driven from their homes and tens of thousands of their family members may be missing or dead, where the men and women of the armed forces of NATO voluntarily risk their lives each day, and where noncombatants in Belgrade and elsewhere risk loss of life and property from NATO's airstrikes and missile strikes.


The headline of this CNN story is "President Clinton declares war on software pirates."  That reporting presumably uses both the term "declared war" and the term "pirates" only as metaphors.  If the story meant those terms literally, then one might note portions of section 8 of Article I of the Constitution, especially clauses 10 and 11:

"The Congress shall have Power ....

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

...."

Clause 10 gives Congress the power "To define and punish Piracies," while Clause 11 gives Congress the power "To declare War."  One might thus argue that these clauses would give Congress a double-shotted argument that the President's declaration of war against software pirates was encroaching congressional rights.  The President might respond that the piracy clause reads, in fuller measure, "define and punish Piracies and Felonies on the high seas,"  and that "on the high seas" is a phrase meant to apply both to piracies and felonies.  Any actions against land-lubbing software pirates would thus fall outside Congress' exclusive power under clause 10.   That would still leave the President with a problem on the basis of clause 11, however.


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This page was last updated on 04/04/99.