01 Mar Why Political Ends are Public Ends, Not Private Ends
Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene’s part concerning the Harvard Draft Convention on Piracy — an error that goes to the very heart of our debate. Both of our arguments depend on the Draft Convention and its commentary, because — as Eugene points out — the ILC Commentary to the Law of the Sea Treaty specifically notes that the Commission “in general” agreed with the Draft Convention. The proper interpretation of the Draft Convention, therefore, is of critical importance to the proper interpretation of the Law of the Sea Treaty.
Here is what Eugene says about whether “private ends” include acts of violence on the high seas that are politically motivated (emphasis mine):
The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:
[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.
On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.
Eugene’s claim about Articles 3 and 16 (his reference to Article 14 must be a typo) is extremely misleading. It is true that the language on which I rely does not come from Article 3, which defines piracy under international law — the kind of piracy to which universal jurisdiction applies under Article 2 of the Draft Convention, and the kind of piracy that is governed by the substantive provisions in Articles 3-15 of the Draft Convention. But I quote the commentary to Article 16 instead of to Article 3 for a very specific reason: because Article 16 deals with acts that do not qualify as acts of piracy under international law and are thus excluded from universal jurisdiction and the substantive provisions of the Draft Convention. Here is the text of Article 16 (emphasis mine):
The provisions of this convention do not diminish a state’s right under international law to take measures for the protection of its nationals, its ships and its commerce against interference on or over the high sea, when such measures are not based upon jurisdiction over piracy.
In other words, Article 3 tells us what piracy is; Article 16 tells us what it is not.
And what is not piracy under international law under Article 16? According to the commentary, acts of violence on the high seas committed for “political ends” by any unrecognized organization:
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.
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.
The logic of the commentary’s argument is straightforward: (1) Article 16 recognizes the right of states to use its domestic law to punish acts of violence on the high seas that do not qualify as piracy under Article 3; (2) Article 16 specifically covers acts of violence on the high seas that are committed for political ends; (3) many authors and some courts believe that such acts of violence should be considered piracy under international law; and (4) that is not the position taken by the Draft Convention — acts of violence on the high seas committed for political ends are not piracy under international law, so they must be prosecuted under domestic law instead. The paragraph could not be more clear. Indeed, the commentary specifically uses the term “political ends” instead of “private ends” to foreground the fundamental difference between the two.
It is also worth noting that the exclusion of “political ends” from the definition of piracy under international law is not limited to the commentary to Article 16. In fact, the commentary to Article 3 itself specifically endorses that exclusion (p. 786; emphasis mine):
While the scope of the draft convention is controlled by the international law of piracy, it is expedient to modify in part the traditional jurisdiction because of modern conditions. The modification may work in both directions. It may be thought advisable to exclude from the common jurisdiction certain doubtful phases of traditional piracy which can now be left satisfactorily to the ordinary jurisdiction of a state, or of two or three states, stimulated to action on occasion by diplomatic pressure; and it may be expedient to concede common jurisdiction over certain sorts of events which are not beyond dispute piracy by tradition, but bear enough analogy to cases of undoubted piracy to justify assimilation under that caption. Therefore the draft convention excludes from its definition of piracy all cases of wrongful attacks on persons or property for political ends, whether they are made on behalf of states, or of recognized belligerent organizations, or of unrecognized revolutionary bands. Under present conditions there seems no good reason why jurisdiction over genuine cases of this type should not be confined to the injured state, the state or recognized government on whose behalf the forces were acting, and the states of nationality and domicile of the offender. Most of these cases would not fall indisputably under the common jurisdiction by traditional law, and this is an additional reason for disposing of them as the draft convention does.
Nor is that all. Here is what the commentary to Article 3 says under the heading “… for private ends” (p. 798; emphasis mine):
Although states at times have claimed the right to treat as pirates unrecognized insurgents against a foreign government who have pretended to exercise belligerent rights on the sea against neutral commerce, or privateers whose commissions violated the announced policy of the captor, and although there is authority for subjecting some cases of these types to the common jurisdiction of all states, it seems best to confine the common jurisdiction to offenders acting for private ends only. There is authority for the view that this accords with the law of nations. The cases of acts committed for political or other public ends are covered by Article 16. The explanation of this treatment is given under that article.
The final bolded sentence is particularly important, because it makes inordinately clear that, for purposes of the Draft Convention, a political end is a type of public end. Those ends are not piracy under international law and are not covered by Article 3.
Finally, it is important to recognize that the Draft Convention’s explicit exclusion of “political ends” from the category of “private ends” follows naturally from the League of Nations’ 1926 Draft Provisions for the Suppression of Piracy, which is reproduced as Appendix I of the Draft Convention (p. 873). Here is Article 1 of the Draft Provisions (emphasis mine):
Piracy occurs only on the high sea and consists in the commission for private ends of depredations upon property or acts of violence against persons.
It is not involved in the notion of piracy that the above-mentioned acts should be committed for the purpose of gain, but acts committed with a purely political object will not be regarded as constituting piracy.
Eugene’s argument, in short, cannot be sustained. It is true, as he says, that piracy cannot be committed by ships sailing under public authority. But that does not mean that any act of violence on the high seas committed by a ship not sailing under private authority qualifies as piracy under international law. On the contrary, only acts of violence on the high seas committed for “private ends” qualify as piracy under international law — and “private ends” are different from, and do not include, “political ends.” Political ends are public ends.