Emerging Voices: Theorising Universal Jurisdiction–Time to Reappraise the “Piracy Analogy”?

[Mark Chadwick is a Lecturer in Law at Nottingham Law School, Nottingham Trent University.]

Universal jurisdiction remains a contested area of international law.  By permitting domestic legislatures and courts to exercise jurisdiction over heinous international crimes, regardless of “where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the State”, universal jurisdiction stands as an anomaly to well established “State-centric” forms of jurisdiction (territoriality, nationality, passive personality or the protective principle).  Moreover, it cuts against Frederick Mann’s principle that the apportionment of jurisdiction in a given case ought to be reserved to “the State […] whose contact with the facts is such as to make the allocation of legislative competence just and reasonable”.

It is unsurprising, then, given its far-reaching scope and anomalous nature, that universal jurisdiction remains a perennial point of debate, a frequent source of attack from both legal and political angles. For as long as States find a reason to reject the principle in their own self-interest, and for as long as there is legal uncertainty over the proper place and legal basis of the principle, this debate will likely continue – even as the principle continues to take root as a vital tool in the repression and punishment of international crime

There is an underlying question over the justification or theorisation universal jurisdiction, clarity on which may help us to better understand the inherent nature of the principle and to move the debate in a new direction (it is often rather grandly claimed, for instance, that States exercise universal jurisdiction “on behalf of the international community”, serving globally held erga omnes interests). The answer to this question, I suggest in my new book, may be found with an unlikely figure: the pirate.

The “Piracy Analogy”

That States may exercise universal jurisdiction in cases of piracy is an undisputed norm of international law. It is written into the 1984 United Nations Convention on the Law of the Sea (Article 105) and is generally accepted as being an entitlement under customary international law. The right is believed to be of ancient lineage, traceable, perhaps, to Cicero’s denunciation of pirates as “communes hostes omnium” (“the common foe of all the world”), with input along the way from Alberico Gentili and Hugo Grotius.  

It is tempting, then, to draw a connection between piracy and the modern day “core” international crimes.  This so-called “piracy analogy” is a useful tool for adherents of universal jurisdiction, given that it appears to demonstrate the antique pedigree of universal jurisdiction. It lends it a “historicity”, proving that there it nothing new, nothing unusual, for States to operate in this way. To cite the Israeli Supreme Court in the 1961 Eichmann case, “the substantive basis underlying the exercise of universal jurisdiction in respect of the crime of piracy also justifies its exercise in regard to the crimes with which we are dealing in this [genocide] case”. Adolf Eichmann, the Holocaust logistician, was, in the Court’s view, a pirate – a qualification that authorised the exercise of universal jurisdiction in such circumstances.  The Court held that “it was the agreed vital interest of the international community that justified the exercise of the jurisdiction in question”, an allusion to the grandiose “agent of the international community” theory.

The “piracy analogy” rests on a perceived connection between old and new. Piracy, so the argument goes, was (and still is) a particularly “heinous” offence that, because it was so serious, could be prosecuted by any State in any circumstance.  By extension, genocide is, similarly, a “heinous” offence, subject to international proscription and should also be subject to universal jurisdiction in the same manner. As a number of critics have indicated, however (most notably Eugene Kontorovich), this equation does not quite ring true.  Pirates might be terrible people who plague the high seas – notwithstanding, of course, the associated romanticism.  Yet the act of “robbery at sea” is not exactly comparable to genocide, the “denial of the right of existence of entire human groups”. The analogy is arguably misplaced, then, with pirates belonging (according to Kontorovich) to “a lesser, ordinary class of evil”. An alternative explanation for the universal jurisdiction over piracy may, it is posited, be for pragmatic “sea-policing” reasons.

Revisiting the “Piracy Analogy”

My book sets out to unravel the relationship between universal jurisdiction, piracy, and modern day “core” international crimes. A detailed historical investigation reveals that there are more substantial and complex relationships between these areas of law than may initially be apparent.

The origins of the relationship commence with Cicero’s aforementioned denunciation of pirates in De Officiis (67 BC), though the Roman orator’s words were, in reality, aimed at the troublesome seafaring tribes operating out of Cilicia in the Eastern Mediterranean.  Nevertheless, Cicero’s use of the term communes hostes omnium proved to be prophetic, providing fuel for later developments. Alberico Gentili (De Jure Belli Libri Tres, 1589) and Hugo Grotius (De Jure Praedae, c. 1604, and De Jure Belli ac Pacis, 1625) utilised the “Ciceronian paradigm” of piracy to bolster the rectitude of the ascendant proto-Westphalian State, as distinguished from piratical bands, which were “confederated only to do mischief”.

For many centuries, however, piracy was generally tolerated by European monarchs, content to maintain a reserve army of privateers ready for enrolment at the onset of the next, inevitable, war (and as long as the pirates maintained a rough allegiance during peacetime). The situation shifted radically in the early eighteenth century as attitudes against pirates began to turn and harden. The trial of Scottish-born pirate Captain Kidd at the Old Bailey in 1701 proved to be a key turning point.  At the behest of the Mughal Emperor (whose own treasure-laden vessel, the Quedagh Merchant, had been seized by Kidd’s crew), pirates were denounced, in decidedly Ciceronian terms, as part of “the growing trouble, disturbance and mischief of the trading world” as well as being “hostes humani generis, the enemies to all mankind”. The mood caught on, with similarly pugnacious language employed at piracy trials throughout the first half of the eighteenth century. At the 1705 trial of English pirate Thomas Green, the Scottish Admiralty Court claimed that “all mankind have an interest to pursue [pirates], wherever [they] can be found”.  In so doing, the court made a direct allusion to universal jurisdiction.

The drama played out against a perceived (perhaps even manufactured) existential crisis in which the Westphalian State sought to assert its dominance through power and reason, with pirates cast as the enemies to their civilising project. Pirates were recast as a genuine threat to mercantilist sovereign Statehood. Allowed to thrive, they would have spelt the downfall of civilisation and a reversion to the “primordial” state that Grotius had warned of. Piracy was presented as being a genuinely heinous international offence, one that indiscriminately threatened inter-State commerce and, in so doing, sought to subvert the State. Pirates had made “a declaration of war against the whole world”, and States began to claim the right to universal jurisdiction as an apparently proportionate response to the seriousness of the threat faced.

This was the period of history that informed the inclusion of universal jurisdiction in the 1984 UN Convention on the Law of the Sea, the terms of which were lifted from the 1932 Draft Convention on Piracy drafted by the Harvard Research Group. Despite the absence of piracy from the seas at the time, the Group nevertheless recognised the “gravity of the former dangers of piratical enterprises to the sea-borne commerce of the world”.  The attitudes and values of the eighteenth-century cases influenced the inclusion of universal jurisdiction in the Draft Treaty and informed its raison d’être.

Conclusion

When looked at through this historical lens, piracy appears to become a valuable precursor to the “core” crimes, with both being perceived as “heinous”, albeit for fundamentally different reasons.  The rise and entrenchment of human rights in international law has promoted a new set of international concerns, focused on the protection of the human (or groups thereof) against those in positions of power.  Joining the dots, we might conclude that universal jurisdiction can be best regarded as a communal response mechanism designed to uphold (per Eichmann) the“agreed vital interests of the international community”. It indicates where our most deeply held global values lie at a given point in time. Courts exercising universal jurisdiction are arguably doing what they have always done in order to protect the integral values held by humanity as a whole.