A Response to Kontorovich and Gallagher About Piracy (Updated)

by Kevin Jon Heller

Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments):

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

I would add that the Harvard commentary only seems to make an exception for the classic hard case – rebel warships in an actual belligerency. The International Law Commission seems to endorse that exception in its commentary to the treaty draft, but at the same time seem to exclude merchant vessels not in a belligerent context from an possible immunity.

There are three problems with Eugene’s argument. First, it does not address the League of Nations report, which specifically states that politically-motivated acts do not qualify as piracy. The report adopted a private/political binary, not a private/public one. Second, the Harvard commentary does not make an exception only for “rebel warships in an actual belligerency.” On the contrary, the commentary specifically rejects the idea that the exception applies only to rebel groups that have been recognized as belligerents. Here is the quote from my previous post (emphasis mine):

This Article covers inter alia the troublesome matter of illegal forcible acts for political ends against foreign commerce, committed on the high sea by unrecognized organizations. For instance a revolutionary organization uses an armed ship to establish a blockade against foreign commerce, or to stop and search foreign ships for contraband, or to seize necessary supplies from foreign ships. These acts are illegal under international law, at least if the revolutionary organization has not been recognized as a belligerent by the offended state, and in some cases the offended state has proceeded to capture or destroy the offending ship. Some writers assert that such illegal attacks on foreign commerce by unrecognized revolutionaries are piracies in the international law sense; and there is even judicial authority to this effect. It is the better view, however, that these are not cases falling under the common jurisdiction of all states as piracy by the traditional law, but are special cases of offences for which the perpetrators may be punished by an offended state as it sees fit. This is the view reflected by this Article. It leaves unaffected the right of an offended state to seize and punish the offenders in accordance with the precedents cited (and, of course, this may, at the option of the prosecuting state, include conviction and punishment for piracy under its municipal law); but it does not concede jurisdiction on the ground of piracy in the international sense to states not offended or threatened.

Third, and finally, Eugene also does not address the ILC’s approving reference to both the League of Nations report and the Harvard commentary during the drafting of what would become the High Seas Convention’s definition of piracy.

To her credit, Maggie acknowledges (in the article in the Journal of International Criminal Justice she mentions in her comment) that the Harvard commentary does not limit the “exception” to piracy to recognized belligerencies. But she misunderstands the nature of belligerent recognition (emphasis mine):

The commentary to the Harvard Draft suggests the ‘private ends’ requirement was originally intended to exclude from the definition of piracy only the acts of belligerents and rebels who do not have the standing of states under international law, but who nonetheless operate within the context of the laws of war or of state responsibility and whose acts might therefore be considered ‘public’. Under this perspective, if an aggressor were not a state (or otherwise state-sanctioned) or a rebel engaged in civil war, the attack would be considered ‘private’. The opposite of ‘private’, then, would not be ‘political’ but ‘public’.

The bolded claim is incorrect. By definition, a rebel group that has not been recognized as a belligerent does not not operate “within state responsibility”; the fundamental premise of the insurgent/belligerent distinction is that a rebel group is entitled to be treated as if it were a state only upon recognition. That is an uncontroversial point. Consider the following statements, the cites for which can be found in my article on neutrality:

Oppenheim: “[M]atters are different after recognition. The insurgents are then a belligerent Power, and the civil war is then real war.”

Lauterpacht: “Given the required conditions of belligerency as laid down by international law, the contesting parties are legally entitled to be treated as if they are engaged in a war waged by two sovereign States.”

Lootstein: “Traditionally, upon recognition of the status of belligerency, third party States… treated the two parties to the conflict as equals—each sovereign in its respective areas of control.”

Cullen: “When recognized as belligerents, parties to an internal conflict were, under traditional international law, to be treated in essentially the same way as states at war.”

Only a recognized belligerent, in short, can commit acts that “might… be considered public.” Insurgent acts are private acts, because insurgents are not entitled to be treated as if they were states. By specifically refusing to limit the piracy “exception” to recognized belligerencies, therefore, the Harvard commentary necessarily rejected the private/public binary that Maggie (and Eugene) endorse.

The more fundamental problem with Eugene and Maggie’s argument, however, is that the Harvard commentary does not, in fact, limit the piracy “exception” to rebels — recognized or unrecognized. The commentary explicitly states that the exception is much broader (p. 857; emphasis mine):

This Article covers inter alia the troublesome matter of illegal forcible acts for political ends against foreign commerce, committed on the high sea by unrecognized organizations… It is to be noted that the Article, although designed primarily for the cases of excesses of unrecognized foreign revolutionaries and of irregular foreign privateers, covers all non-piratical but unjustifiable attacks for public or private ends on persons or property under the protection of a state on the high sea.

A more explicit endorsement of the idea that the international definition of piracy excludes all politically-motivated acts of violence is difficult to imagine.

UPDATE: Interested readers should take a look at this essay by His Excellency Jose Luis Jesus, a judge at the International Tribunal of the Law of the Sea.  He concludes in no uncertain terms (pp. 378-79) that “private ends” do not include politically-motivated acts, emphasizing that such acts, though not traditionally piracy, now likely qualify as maritime terrorism under the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention):

This requirement seems to exclude sheer politically motivated acts directed at ships or their crew from the definition of piracy. In the past the issue of whether a politically motivated act was a piratical act drew substantial support from some publicists and governments.

The piracy rules, specifically tailored to handle piratical acts, were in the past stretched in their interpretation and application by some national jurisdiction and by some commentators to also cover, by default, other unlawful, politically related, acts against ships and persons on board, such as terrorist acts. “Courts in the United States and Britain and a number of prominent publicists took the position that any unauthorized act of violence committed on the high seas is piracy.’’

Today, however, especially after the adoption of the SUA Convention, it would appear to be a lost cause to continue insisting on considering such a politically-motivated act as piracy. If, in the past, politically-motivated acts of violence or depredation against ships and persons aboard, short of being piracy, were left out of the international regulatory system, as it were, today they are covered by Article 3 of the said SUA Convention.

Likewise, the “private ends’’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the “private ends’’ criterion seems to be excluded.

The judge specifically cites the politically-motivated seizures of the Santa Maria in 1961 and the Achille Lauro in 1985 as acts that are often wrongfully described as piracy.  (Although, as Myres McDougall and William Thomas Burke note in their seminal 1962 book The Public Order of the Oceans (p. 822), the US itself rejected the claim that the Santa Maria’s seizure qualified as piracy on the ground that the seizure was politically motivated.)

http://opiniojuris.org/2013/02/27/a-response-to-kontorovich-and-gallagher-about-piracy/

4 Responses

  1. Here’s a thought experiment to consider:
    A Somali pirate says that he has dual motives behind his actions: 1) he wants to stop what he considers to be illegal fishing and dumping, and; 2) he wants to make money in the form of ransoms. A Sea Shepherd says that she has a dual motives behind her actions: 1) she wants to stop what she considers to be illegal whaling, and 2) she wants to make money in the form of the salary she takes from the Sea Shepherds.
    Assuming the above is true, how we distinguish the ends pursued such that the Somali can be deemed a pirate and the Sea Shepherd can be deemed innocent?

  2. Jon,

    I don’t think there is any difficulty considering such an act piracy.  If there is a genuinely private end, the simultaneous existence of a political end should not matter.  Judge Luis Jesus mentions that point in the essay I link to above; he takes the same view as I do.

  3. That is a great essay. I recommend it for anyone who is even remotely interested in this topic. And I definitely appreciate both your and Judge Luis Jesus’s position. I just have trouble with the notion that a private citizen working on behalf of a private organization for a privately-raised salary is not performing her actions for “private ends” simply because she and her colleagues personally believe their ends are in the public interest. I think that “political” was meant to be read slightly more narrowly than that.

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