Piracy

by

Monique Cormier, Gerry Simpson

• LAST REVIEWED: 19 July 2018
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0026

Introduction

International law, it might be argued, is a legal system directed toward the defeat or suppression of a category of violators known as “enemies of mankind,” or hosti humanis generis. Sometimes these are war criminals, sometimes they are terrorists or slave traders. The original enemy of mankind was the “pirate.” Piracy gave rise to a highly specialized form of international jurisdiction known as universal jurisdiction. Because pirates were a threat to the global order (particularly global sea trade), or because they committed particularly heinous acts, or because their acts were committed in a place beyond the territorial jurisdiction or sovereignty of any state (different reasons have been adduced at different times), they were subject to the jurisdiction of any state that happened to identify them, engage with them, and capture them. Thus, a pirate could be prosecuted in every state’s courts. The contemporary law of piracy, embodied in the United Nations Convention on the Law of the Sea, has defined piracy as an act of violence or depredation committed on the high seas by a private actor acting for private ends. This distinguishes piracy from naval warfare or recognized belligerency on the high seas, but it has complicated efforts to apply the law of piracy to terrorists (who, after all, act for political ends, and most commonly in the territory of sovereign states) and it has meant that acts of piracy committed in the territorial waters of states are not subject to the international law of piracy (and the expansive forms of jurisdiction that accompany it). Therefore, attempts to assimilate terrorism to piracy have fallen foul of the technical rules governing traditional piracy. Likewise, these same rules frustrated initial efforts to confront the growing problem of traditional piracy carried out in places other than the high seas. The “international terrorist” and the Somali pirate, then, pose different problems for international law. In the case of terrorists, states have adopted ad hoc and controversial methods comparable to those used against pirates on the high seas. In the case of Somalia, the UN Security Council has authorized an international naval response to pirate attacks that permits foreign naval vessels to use force against pirates within Somali territorial waters.

General Overviews

From sometimes quite different positions, all of these readings offer an overview of the field of piracy. Heller-Roazen 2009 demonstrates how central piracy has been to the law of nations and conceptions about the international community. The “enemy of mankind” is, for Heller-Roazen, a central figure in the way international law and community are constructed. Rediker 1993 is more interested in the texture of pirate life and the way in which pirates resist, challenge, and sometimes assimilate the assumptions of a capitalist global economy. The law of piracy is sketched in Noyes 1990–1991 and Kavanagh 1999, both of which focus on the definitions of piracy in international law and the forms of jurisdiction exercised over pirates in international law. Sherry 1986 discusses the outlaw nature of pirate society and its comparatively progressive structure. The Third United Nations Convention on the Law of the Sea is the core legal text on questions of piracy. It establishes the formative definition of contemporary piracy (an act directed at high-seas shipping and undertaken by unauthorized persons for private motives). Oppenheim 1992 is an authoritative legal analysis of the international and municipal law of piracy.

• Heller-Roazen, Daniel. The Enemy of All: Piracy and the Law of Nations. New York: Zone Books, 2009.

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  NNNFrom Cicero to Carl Schmitt, this is a philosophical and genealogical history of piracy in which the author proposes that “the enemy of all” is a paradigm that can be applied to all manner of international outlaws.

• Kavanagh John. “The Law of Contemporary Sea Piracy.” Australian International Law Journal (1999): 127–157.

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  NNNA useful introductory overview of the development of modern international piracy law, with some discussion of its shortcomings. Note, however, that the final quarter of this essay is dedicated to piracy in Australian law.

• Noyes, John E. “An Introduction to the International Law of Piracy.” California Western International Law Journal 21 (1990–1991): 105–121.

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  NNNNoyes engages with the problem of defining the international law of piracy. He examines the definition of piracy under both treaty and customary international law, and looks to the nature of international law for answers. In the second half, Noyes discusses piracy in terms of universal jurisdiction and American municipal law.

• Oppenheim, L. F. L. “Piracy and Related Offences.” In Oppenheim’s International Law. 9th ed. Edited by Robert Jennings and Arthur Watts, 746–755. London: Longman, 1992.

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  NNNEssential reading in which the elements of the crime of piracy under international law are clearly delineated and analyzed. Includes sections on mutiny, pirate objectives, jurisdiction, and punishment, and a brief examination of piracy in municipal law.

• Rediker, Marcus. Between the Devil and the Deep Blue Sea. Cambridge, UK: Cambridge University Press, 1993.

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  NNNA vivid portrayal of Anglo-American seafaring and piracy in the 18th century, set against the larger issues of social upheaval and the rise of capitalism. Rediker compares favorably the democratic life aboard a pirate ship and the tyrannical hierarchy faced by “Jack Tar” aboard the Merchant or Royal Navy.

• Sherry, Frank. Raiders and Rebels: The Golden Age of Piracy. New York: Hearst Marine, 1986.

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  NNNSherry presents a chronological history of the Golden Age of piracy, examining both the causes and consequences of piracy. Several chapters are devoted to the “outlaw nation” established on Madagascar, described by the author as the “only one true democracy on earth.” Sherry also discusses pirates’ insistence on individual rights and their adherence to codes of behavior.

• Third United Nations Convention on the Law of the Sea (New York 10 December 1982), 1833 U.N.T.S. 3.

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  NNNUNCLOS III (entered into force 16 November 1994) imported its definition of piracy directly from the 1958 Geneva Convention on the High Seas, and reflects customary international law on what constitutes an act of piracy. Articles 100–107 of this treaty deal directly with legal issues relating to piracy. The full text of the convention, also known as the Law of the Sea Treaty (LOST), is available online from the United Nations Law of the Sea Treaty Information Center.