Judge Kozinski’s “Rich History” of Piracy

by Kevin Jon Heller

As Julian noted earlier, the Ninth Circuit, in an opinion written by Judge Kozinski, has decided that anti-whaling activism qualifies as piracy if it involves violence against a ship on the high seas. I’m running short for time right now, but I want to briefly respond to Kozinski’s key claim about the traditional understanding of piracy’s “private ends” requirement (p. 4; emphasis mine; internal citations omitted):

The district court construed “private ends” as limited to those pursued for “financial enrichment.” But the common understanding of “private” is far broader. The term is normally used as an antonym to “public” (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy)…. We give words their ordinary meaning unless the context requires otherwise. The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state.

Kozinski doesn’t mention any of the historical sources that ostensibly constitute this “rich history”; he simply cites the dictionary definition of “private” and a 25-year-old Belgian case that has never been followed by any other court. But that’s not surprising: although the traditional understanding of piracy is not limited to acts of violence motivated by the desire for financial gain (an error made by many scholars and activists), there is significant historical support for the idea that piracy specifically excludes acts of violence that are politically motivated.  Here, for example, is what the rapporteur of the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927 about the meaning of “private ends” (emphasis added):

Certain authors take the view that desire for gain is necessarily one of the characteristics of piracy. But the motive of the acts of violence might be not the prospect of gain but hatred or a desire for vengeance. In my opinion it is preferable not to adopt the criterion of desire for gain, since it is both too restrictive and contained in the larger qualification “for private ends.” It is better, in laying down a general principle, to be content with the external character of the facts without entering too far into the often delicate question of motives. Nevertheless, when the acts in question are committed from purely political motives, it is hardly possible to regard them as acts of piracy involving all the important consequences which follow upon the commission of that crime. Such a rule does not assure any absolute impunity for the political acts in question, since they remain subject to the ordinary rules of international law.

And here is the commentary to Article 16 of the 1932 Harvard Draft Convention on Piracy (p. 857):

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. These cases often involve serious political considerations which may direct the course of action of the offended State. The Article does not dictate any course of action; it merely preserves such criminal and police jurisdiction as is given by traditional law. If an attack by a ship manned by insurgents is inspired by a motive of private plunder, it may be piracy under the definitions of the draft convention.

The International Law Commission referred extensively — and favorably — to both commentaries’ discussion of political motivation during the drafting of what became Article 15 of the 1958 Convention on the High Seas, which defines piracy as “[a]ny illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft.” (See, for example, the record of its 290th Meeting on 12 May 1955.)  Judge Kozinski references Article 15 (p.3), but simply ignores its drafting history.

Kozinski’s “rich history,” in short, is actually much poorer than he imagines. Perhaps he should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources.

http://opiniojuris.org/2013/02/27/judge-kozinskis-rich-history-of-piracy/

8 Responses

  1. So, here’s a quandary.

    Suppose a Green party attains power in a leftish nation, and decides to issue letters of marque to Sea Shepherds — to harass whalers who appear to violate ICRW requirements ?

    If the issuing power and the flag nation of the vessel are both members of the ICRW, and even though the Convention does not have treaty status, would this still be lawful enforcement action under customary international law ? Would it matter if the flag nation withdrew from the Convention ?

  2. Yes, and there are cases and incidents that demonstrate that if a perpetrator of violence or robbery has a political purpose it ain’t piracy!  Consider the U.S. request to Italy for extradition of the Achille Lauro boatjackers and all of the law review literature about such, the need to create a new international convention (IMO) re: boatjacking, etc.  Earlier incidents iinvolved revolutionary activity = not “piracy.”
    Meade: what do you mean by “harass”? threat or use of armed force against the equivalent of the territory of the flag state? UN Art. 2(4)?

  3. “Harass” — Yes, indeed. Piracy is often defined as harassing commerce on the high seas. The purpose (material gain or political gain) is immaterial it seems to me. Certainly, acid attacks and deliberate fouling would be acts of aggression.

    In any event, while privateers certainly were motivated by material gain in capture of prizes — their purpose was explicitly political as a tool to advance war aims against a belligerent.
    I see little difference in the situation that Sea Shepherds does not see monetary gain. Political purpose would be a express element of a letter of marque, but without which, they are indisputably acts of piracy.

    Sovereigns dealing out political cover may give but little order to international enforcement frameworks — but they are all we really have. Letting groups self-declare “political purposes” as defense to piracy is demonstrably worse.

    “William Teach, unfairly dubbed a pirate, was actually extreme political activist for the Stuart cause in the name of Good Queen Anne.” Really?

  4. Correction: Edward Teach (Blackbeard)

  5. Naturally, I have some thoughts about this at Volokh.
    http://www.volokh.com/2013/02/27/yes-sea-sheperd-engages-in-piracy-under-international-law/

    Kevin, 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.

  6. p.s. — see, e.g., Rep. of Bolivia v. Indemnity Mutual Marine Assurance Co., [1909] 1 K.B. 785 (“not … for a public political end”); The Santa Maria Incident — Franck, 36 NYU L. Rev. 839 (1961), etc.
    Dole v. New England Mutual Marine Ins. Co., 7 F. Cas. 837, 847 (C.C.D. Mass. 1864); see also The Ambrose Light, 25 F. 408, 411-12 (SDNY 1885); The Chesapeake, Stockton 208 (N.B.) (1864)

  7. Eugene,

    The very passage I quote above contradicts your reading of the Draft Convention. Here is the sentence before the bolded text:

    Some writers assert that such illegal attacks on foreign commerce by unrecognized revolutionaries are piracies in the international law sense.

    To which the experts immediately respond by pointing out that “the better view, however, [is] that these are not cases falling under the common jurisdiction of all states as piracy by the traditional law.”

    Your post also does not even attempt to address (1) the League of Nations report, which is explicit about politically-motivated acts not being piracy; (2) the approving reference to that report in the commentary to the Draft Convention; or (3) the approving reference to both reports by the ILC during the drafting of what became Art. 15 of the High Seas Convention. 

  8. Sea Shepherd’s actions are not acts of piracy — and labeling them as pirates for the purpose of leveraging charges is contrary to the intent of anti-piracy laws — like prosecuting street protesters for acts of vandalism as terrorists.

    Kozinski reasoned that he could expand the meaning of ‘private ends’ to include environmental protest.

    This has been addressed before — contrary to Kozinski’s opinion.

    For example:
    “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 INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW
    Vol 18, No 3, 378 – 379

    Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects
    H.E. Jose´ Luis Jesus
    Judge, International Tribunal for the Law of the Sea, Hamburg

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