INTERNATIONAL CRIMINAL LAW OF THE SEA
4.2.1 Definition of piracy under international law
Piracy under international law, otherwise known as piracyjure gentium,is the oldest international offence. Until the 1536 Statute of Henry VIII,5piracy was punished in England only when committed within the realm of the Admiralty of the Crown and, then, merely as a civil offence. The 1536 Statute changed the jurisdictional element of piracy but not the nature of the offence as robbery at sea. It was well recognised by the 17th century that the common law definition was in no essential respect different from that of the law of nations.6
Although jurisdiction for piracy jure gentium under customary law was acknowledged as belonging to all States,7no authoritative definition existed as to its substantial elements.8Hence, until the adoption of an international definition in the 1958 Geneva Convention on the High Seas,9national statutes, the majority of which purported to incorporate the concept of piracy under customary international law,10 were interpreted in accordance with each domestic judiciary’s understanding of the prevailing elements of piracy.11
The earliest element in the definition of piracy wasanimus furandi,the intention to rob a vessel on the high seas—or, as the case at hand, in any waters within the jurisdiction of UK admiralty.12It was later held, in other plagued jurisdictions, that robbery or an intention thereof was not an essential element and that acts of revenge, hatred or abuse of power against another ship were tantamount to piracy. In the Malek Adhelcase, the rather mentally disturbed captain of a commercial ship made
3 ‘Upsurge in South East Asia Cases of Piracy’ (1998)Lloyd’s List,3 December, p 3; ‘Rogue Owners Colluding in Piracy Attacks’ (1999)Lloyd’s List,13 May, p 5.
4 J Hitt, ‘Bandits in the Global Shipping Lines’ (2000)New York Times Magazine,20 August, where the author furnishes information implicating Chinese authorities in the release of captured pirates.
5 Offences at Sea Act 1536, Chapter 15.
6 USA v Smith,18 US 153 (1820), p 159,perStory J.
7 Talbot v Jansen,3 US 153 (1795);Turkey v France(Lotuscase) (1927) PCIJ Reports, Ser A, No 10, p 10,per Moore J.
8 M Halberstam, ‘Terrorism on the High Seas: TheAchille Lauro,Piracy and the IMO Convention on Maritime Safety’, 82AJIL(1988), 269, p 272.
9 450 UNTS 82, Arts 13–22.
10 This is true for the vast majority of contemporary statutes, if not all. See the US Piracy and Privateering Act 1948, 18 USC, § 1651.
11 In some countries slave-trading was considered an act of piracy (Imperial Act, 5 Geo IV, Chapter 113,
§§ 9 and 10), but there was no such consensus between the international community. See Paustet al, International Criminal Law: Cases and Materials,1996, Durham, NC: Carolina Academic Press, p 1229.
12 Rex v Dawson(1696) 13 St Tr 451.
it a habit of aggressively forcing other merchant vessels on the high seas to halt their course, without however robbing or looting them, except only to claim the gunpowder used to force them to stop.13The US Supreme Court stressed that a piratical act is an act of aggression unauthorised by the law of nations, being hostile and criminal in character and commission, and without sanction from public or sovereign authority This was so irrespective of whether the aim of the perpetrator was plunder, hatred, revenge, or wanton abuse of power.14
Since the time of Grotius, a pirate has been considered to behostis humanis generis, an enemy of mankind. This is not a rhetorical statement, it carries legal substance;
for, if a person commits otherwise unlawful acts against persons and property of one country on the high seas, that person cannot readily be characterised as an enemy of mankind, only of that specific country. This issue was encountered when courts determined cases involving interference with maritime commerce not for private ends but as part of political or ideological struggles. The law in the 19th century, as it also stands today, was that insurgents fighting for a political cause should not be treated as pirates, as long as, in their struggle against the target government, they attack only vessels and persons of that State.15This did not mean, of course, that the existence of political motives justified any act of insurgency. It was clear that common crimes, regardless of their motive, would result in the liability of the perpetrator.16 Although now obsolete with the advancement of international humanitarian law, especially common Art 3 of the 1949 Geneva Conventions, the recognition of insurgency or belligerency status was of seminal importance both for the relations between belligerents, but also for the law of neutrality. Insurgency referred to a state of conflict where the dissident group, even though of considerable strength, did not receive international recognition as a legal entity under international law.
Belligerency, on the other hand, existed when an armed conflict was recognised as taking place between two legal entities.17Having established a set of criteria for its recognition,18it was accepted by the end of the 19th century that belligerency was viewed as a question of fact rather than as one of law.19The relevant jurisprudence seems to suggest that the absence of belligerency did not render politically motivated acts by rebel groups piratical. In theAmbrose Light,the New York District Court held that unrecognised insurgents (that is, belligerents) were deemed to be pirates, even though, in that case, there was no proof of violence or depredation beyond that required for the group’s political aims against the Venezuelan Government.20This
13 USA v Cargo of the Brig Malek Adhel,43 US 210 (1844).
14 Ibid,p 230; inRe Piracy Jure Gentium[1934] AC 856, the Privy Council held that actual robbery was not an essential element, as a frustrated attempt to commit piratical robbery is equally piracyjure gentium.
15 See C Hyde,International Law Chiefly as Interpreted by the United States,1945, Boston: Little, Brown, Vol 2;Dole v New England Mutual Marine Insurance Co(1864) 7 F Cas 838, p 847;Republic of Bolivia v Indemnity Mutual Marine Assurance Co Ltd[1909] 1 KB 785, p 795.
16 Magellan Pirates(1853) 1 A & E 81.
17 A Arend and R Beck,International Law and the Use of Force,1993, London: Routledge, pp 81–82.
18 These consisted of the existence of a generalised armed conflict, occupation and administration of a substantial portion of territory, organised armed forces under a responsible leadership and circumstances justifying recognition. H Lauterpacht,Recognition in International Law,1948, Cambridge: CUP, p 176.
19 L Moir, The Historical Development of the Application of Humanitarian Law in NonInternational Armed Conflicts to 1949’, 47ICLQ(1998), 347.
judgment was vociferously rejected by the US executive and overturned by its judiciary shortly after it was issued, having no standing in international law.21The Harvard Draft Convention on Piracy, which was relied upon heavily by the International Law Commission (ILC) rapporteur for the 1958 Convention on the High Seas, found that under customary law an attack by an unrecognised group is not piratical if, had the group received recognition, the contested act would not have been one of piracy.22
The elements described constitute the offence of piracyjure gentium under customary law and, as such, they were incorporated in the relevant definition in Arts 14 and 101 of the 1958 Geneva Convention on the High Seas and the 1982 UNCLOS respectively. The latter provides that:
Piracy consists of 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;23
(c) any act of inciting or of intentionally facilitating an act described in paras (a) or (b).
This definition is in line with customary law as explained above. Theactus reusof the offence is not dependent on factors such as gravity or an intention to act openly.
Hence, inAthens Maritime Enterprises Corp v Hellenic Mutual War Risks Association Ltd,the court erred when it held that a clandestine attempt to rob a ship anchored three miles from the coast of Bangladesh did not constitute piracy simply because the culprits intended to steal without recourse to violence.24It is also clear that the offence requires two vessels or aircraft: the piratical and the victim vessel or aircraft.
It is, thus, evident that piracy under international law cannot be born through an act of mutiny, unless the mutineers subsequently engage in acts of violence or depredation against other vessels or aircraft on the high seas. Likewise, the perpetration of piratical acts, as defined in Art 101 of UNCLOS, by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.25
20 (1885) 25 Fed 408.
21 See LC Green, ‘The Santa Maria: Rebels or Pirates’, 37BYIL(1961), 496, p 502;op cit,Hyde, note 15, p 774.
22 Harvard research in international law, comment to the Draft Convention on Piracy, 26AJIL(1932 Supp) 749, p 857; see 1Yearbook ILC(1955), p 41.
23 Talbot v Jansen,3 US 153 (1795), p 156,perPaterson J.
24 [1983] 1 All ER 590. The court would have been right, however, had it stated that the incident did not constitute piracyjure gentiumbecause it occurred in territorial waters.
25 UNCLOS, Art 102.
Unlike in the 19th century, the contemporary interpretation of the ‘private ends’
proviso logically suggests that illegal violence, detention or depredation against another vessel or its passengers on the high seas, even for political ends of any kind, entails the criminal liability of the perpetrators if they violate any of the universal anti-terrorist conventions. However, an act of violence on the high seas for political ends cannot be characterised as piratical, because it lacks the required private aim; it may, nonetheless, fall within the ambit of a specialised terrorist offence, as these treaties contain clauses specifically renouncing the political character of the crimes contained therein.
Finally, it should be stressed that UNCLOS only addresses the repression of acts of piracy taking place on the high seas and, owing to the reference in Art 58(2) of UNCLOS, also, those acts which are perpetrated in the EEZ. Individual countries may freely limit or expand the international definition as regards acts of piracy committed in their territorial sea. The United Nations (UN) General Assembly and IMO usually refer to such incidents as ‘armed robbery’.