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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 2 The objects of international law, Ch.6 The high seas, Piracy and Related Offences

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 January 2020

Subject(s):
Piracy — Ships / vessels

(p. 746) Piracy and Related Offences

Ormerod, Piracy in the Ancient World (1924) Müller, Die Pirateria im Völkerrecht (1929) Report by Matsuda and Wang Chung-hui for League Codification Committee in AJ, 20 (1926), pp 750–52 Cybichowski, Hag R, 12 (1926), ii, pp 349–58 Pella, ibid, 15 (1926), v, pp 149–257 Gebert, ZI, 26 (1916), pp 8–70 Dickinson, HLR, 38 (1925), pp 334–60 Fairman, AJ, 29 (1935), pp 508–12 Lewis, JCL, 3rd series, 19 (1937), pp 77–89 Lauterpacht, RG, 46 (1939), pp 513–49 Cowles, Calif Law Rev, 33 (1945), pp 177–218 McNair, Opinions, i, pp 265–81 Harv Research, AJ, 26 (1932), Suppl, pp 739ff Wortley, BY, 24 (1948), p 258 Verzijl, International Law in Historical Perspective (vol iv, 1971), pp 248–61 YBILC (1950), ii, p 70 Johnson, Grotius Society, 43 (1957), pp 63–85 O’Connell, The International Law of the Sea (ed Shearer, vol 2, 1984), pp 967–83 Dubner, The Law of International Sea Piracy (1979) Rubin, The Law of Piracy (1988) White, AJ, 83 (1989), pp 727–35.

§ 299  Concept of piracy

Piracy, in its original and strict meaning, is every unauthorised act of violence committed by a private vessel on the high seas against another vessel with intent to plunder (animo furendi). A pirate has always been considered outlaw, a hostis humani generis. According to international law the act of piracy makes the pirate lose the protection of his home state and thereby his national character; and his vessel, or aircraft, although it may formerly have possessed a claim to sail under a certain state’s flag, loses such claim.1 Piracy jure gentium is an ‘international crime’, the pirate is considered the enemy of every state, and can be brought to justice ‘by any nation into whose jurisdiction he may come’.2 As Viscount Sankey LC put it in Re Piracy Jure Gentium3, ‘with regard to crimes defined by international law, that law has no means of trying and punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country’. Indeed, both the Geneva Convention on the High Seas 1958 and the Convention on the Law of the Sea 1982 provide that ‘All States shall co-operate to the fullest possible in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State’.4 Piracy jure gentium is to be distinguished from some acts which particular municipal laws may denominate as piracy, ‘and which therefore are not of universal cognizance, so as to be (p. 747) punishable by all nations’.5 There has been dispute as to what other possible cases, which are not covered by the original conception, may be treated as piracy. Earlier editions of the present work offered a definition which really covers all such acts as are in practice treated as piratical: every unauthorised act of violence against persons or goods committed on the open sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel.

Nowadays, however, the definition of piracy jure gentium in Article 15 of the Geneva Convention on the High Seas 1958, based as it was on the work of the International Law Commission, and now confirmed and repeated word for word in the Convention on the Law of the Sea 1982, must be regarded as having great authority. This definition reads in Article 101 of the 1982 Convention:

‘Piracy consists in any of the following acts:

(a)  any illegal act 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, and directed:

(i)  on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii)  against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

(b)  any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.

(c)  any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).’6

§ 300  Public ships and piracy

As a rule, therefore, only private vessels can commit piracy. A warship or other public ship or aircraft under the orders of a recognised government or belligerent, so long as it remains so, is not a pirate, and if it commits unjustified acts of violence redress must be sought from the flag state, which has to punish the commander, and to pay damages where required.1 (p. 748) The principle that public vessels or aircraft cannot commit acts of piracy does not mean that such craft cannot commit unlawful acts but it does mean that where such unlawful acts are committed by a public vessel or aircraft, its state of nationality is answerable in international law. If a warship or other public ship of a state revolts, and cruises the sea for her own purposes, she ceases to be a public ship, and acts of violence committed by her may indeed be piratical. This, however, ceases to apply once the mutiny is suppressed and lawful authority restored.2 Again, Judge Moore, in his dissenting judgment in the Lotus case (p 70) goes to the crucial consideration when he, following Wheaton, says that piracy is a crime committed ‘on the high seas by persons acting in defiance of all law, and acknowledging obedience to no flag whatsoever’.

At one time there was doubt about the position of warships commissioned by unrecognised insurgents, where, during a civil war, warships join the insurgents before they have been recognised as belligerents. It is evident that the legitimate government might treat such ships as pirates; but third states ought not to do so, so long as these vessels do not commit any act of violence against ships of third states.3

(p. 749) In 1873, when an insurrection broke out in Spain, Spanish warships stationed at Carthagena fell into the hands of the insurgents and the Spanish Government proclaimed these vessels pirates, Great Britain, France, and Germany instructed the commanders of their warships in the Mediterranean not to interfere as long as these insurgent vessels4 abstained from acts of violence against the lives and property of their subjects.5 When, however, in 1877 a revolutionary outbreak occurred at Callao in Peru, and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal without payment from one of these and forcibly took two Peruvian officials from on board another where they were passengers, it was considered a pirate and was attacked by the British Admiral de Horsey, who was in command of the British squadron in the Pacific.6

It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (animus furandi) is not required. Thus, for instance, if a private neutral vessel, without any commission during war, out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered a pirate.

The case must also be mentioned of a privateer or warship which, after the conclusion of peace, or the termination of war by subjugation and the like, continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end, she cannot be considered a pirate. Thus the confederate cruiser Shenandoah, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate7 by (p. 750) the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he asserted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.

The case of the vessel Huascar, discussed above, shows that a vessel may be treated as piratical even if she is not a private vessel in the literal sense of the word, and even if her depredations are not effected with the intent to plunder for private gain. Vessels of unrecognised insurgents interfering with ships of third states may be treated as piratical; when such attacks show criminal ruthlessness resulting in loss of life, their crews may be subjected to the drastic penalties which international law reserves for pirates jure gentium.8

There has also from time to time been some doubt whether vessels acting under orders of a recognised government, might not be guilty of acts of piracy if they commit acts which are in gross breach of international law and show a criminal disregard of human life.9 In the course of the Spanish Civil War, Great Britain, Belgium, Egypt, France, Greece, Roumania, Turkey, and Soviet Russia concluded, on 14 September 1937, the Nyon Agreement which provided for collective measures ‘against piratical acts by submarines’ of unknown nationality. These were described as ‘acts contrary to the most elementary dictates of humanity which should be justly treated as acts of piracy’.10 The same tendency, though expressed in more guarded language,11 was found in Article 3 of the unratified Treaty of Washington 1922, which provided for the punishment ‘as if for an act of piracy’ of persons directly responsible for sinking merchant vessels in a manner contrary to international law.12 When, in September 1941, President Roosevelt issued orders to American naval forces to fire at sight upon German and Italian submarines and surface vessels, he described that measure as being one in defence against piratical attacks in violation of international law. And in the last edition of the present work it was considered that there was substance in the view that, by continuous usage,13 the notion of piracy had been extended (p. 751) from its original meaning of predatory acts committed on the high seas by private persons and that it had come to comprise generally ruthless acts of lawlessness on the high seas by whomsoever committed. This view, however, was considered and rejected by the International Law Commission14 and their draft definition was, as has been seen, adopted in Article 15 of the Geneva Convention; and this provision survived without amendment in Article 101 of the Convention on the Law of the Sea 1982. Consequently there can now be little doubt that piracy jure gentium remains essentially an offence of a private vessel or aircraft committed for private ends.15

§ 301  Mutinous crew and passengers

There has been good authority for saying1 that if the crew, or passengers, revolt on the open sea and convert the vessel and her goods to their own use, they commit piracy, whether the vessel is private or public; in short, that piracy was constituted if the object of the illegal violence were not another ship but the ship on which they were crew or passengers. This view would appear to be rejected in Article 15 of the Geneva Convention which speaks only of violence on the high seas ‘against another ship or aircraft’. Moreover, the International Law Commission’s commentary on the draft article on which this was based stated categorically: ‘acts committed on board a ship by the crew or passengers and directed against the ship itself, or against persons or property on the ship, cannot be regarded as piracy’.2 Article (p. 752) 101 of the Convention on the Law of the Sea 1982 is to the same effect. Of course, if after the vessel or aircraft has been converted to the use of the mutinous passengers or crew, it thereafter cruises against other shipping or aircraft that would then be piracy. Where persons on board are united in purpose, the ship or aircraft is a pirate if those persons who are in ‘dominant control’ intend to use it for piratical acts. A pirate ship or aircraft remains a pirate ship or aircraft so long as it remains under the dominant control of such persons.

Nevertheless the matter is not entirely clear. In both the 1958 Geneva Convention (Article 17) and the 1982 Convention (Article 103) it is provided that:

‘a ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.’

It would seem, therefore, that, where persons take control of the ship, or aircraft, in which they are, and do this with the present intention of using the craft for piratical acts, they have already committed an act of piracy.

§ 302  Object of piracy

Thus the object of piracy is any public or private vessel or aircraft, or the persons or the goods thereon, whilst on the high seas. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel or aircraft which is the centre of his interest, and he might indeed free the vessel and the crew after having appropriated the cargo. But he remains a pirate, whether he does that only or whether he kills the crew and appropriates the ship or sinks her. On the other hand, the cargo need not be the object of his act of violence. If he stops a vessel or aircraft and takes a passenger off with the intention of keeping him to ransom, that is piracy; it is likewise piracy if he stops a craft merely to kill a person on board, although he may afterwards free vessel, crew, and cargo. In fact, provided it be directed against another vessel or aircraft, ‘any illegal act of violence, detention or any act of deprivation, committed for private ends’ will suffice. There is no requirement of an animus furandi. Piracy may be prompted by hatred or revenge as well as for gain.1

Piracy is moreover effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. For example, a ship which forces another ship, by threatening to sink it if it should refuse, to deliver up its cargo or a person on board, commits piracy just as much as the ship which attacks another vessel, kills its crew, and thereby gets hold of its cargo or a person on board.

The act of violence need not be consummated:2 a mere attempt, such as attacking or even chasing a vessel for the purpose of attack, by itself constitutes piracy. (p. 753) On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.3

§ 303  Where piracy can be committed

Piracy as an ‘international crime’ could formerly be committed on the high seas only. Piracy in territorial sea or national waters has as little to do with international law as other robberies within the territory of a state.1 But Article 15 of the Geneva Convention on the High Seas 1958, following a proposal of the International Law Commission, added the provision that piratical acts may be committed, ‘(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State’; and this is repeated word for word in Article 101 of the Convention on the Law of the Sea 1982. Thus, whilst an attack that takes place within the territory, including the territorial sea, of a state, is a matter for that state itself to deal with in accordance with its own law, it is both logical and convenient to include in piracy jure gentium acts committed outside the jurisdiction of any state, eg on an island which is terra nullius, or on the shores of any territory not subject to a territorial jurisdiction.2 It should be added that it is confirmed by Article 58.2 of the 1982 Convention that piracy jure gentium can take place in an ‘Exclusive Economic Zone’. This is indeed also clear from principle, for the exclusive economic zone, whether it be regarded simply as a special part of the high seas, or as being an area sui generis, is certainly not territorial.

§ 304  Jurisdiction over pirates and their punishment

Every state has, by international law, the right, on the high seas or in any other place outside the jurisdiction of any state, to seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, arrest the persons and arrest the property on board.1 It is for the courts of the state which has carried out the seizure to determine the penalties to be imposed, and the action to be taken with regard to the ship, aircraft, or other property subject to the rights of third parties acting in (p. 754) good faith.2 There was formerly a difference of opinion whether seizure of pirates could be made only by warships.3 The Geneva Convention provides a compromise solution that such seizure may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorised to that effect.4 This does not, of course, preclude capture of a pirate ship by its intended victim acting in self-defence, and which subsequently hands the pirate over to a governmental authority.5

Where a seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the seizing state is liable to the state of nationality of the ship or aircraft for any loss or damage caused by the seizure.6

§ 305  Piracy according to municipal law

Piracy jure gentium must not be confused with piracy according to the different municipal laws. States may confine themselves to punishing as piracy fewer acts of violence than those which international law defines as piracy. On the other hand, they may punish their own subjects as pirates for a much wider range of acts. However, since a state cannot enforce its municipal laws on the high seas against other than its own subjects,1 it cannot treat foreigners on the open sea as pirates, unless they are pirates according to the law of nations. Thus, when in 1858, before the abolition of slavery in America, British warships molested American vessels suspected of carrying slaves, the United States was justified in complaining.2

It has been mentioned above that there is some difficulty in applying the law of piracy to acts of terrorism even on ships on the high seas. The need for rules to deal with terrorist acts as such was illustrated by the seizure in the Mediterranean Sea, of the Achille Lauro, an Italian registered cruise ship, in 1985.3 The terrorists (p. 755) threatened to kill the passengers (there were 454 persons on board) unless 50 Palestinians held in jail in Israel were released. Eventually the terrorists surrendered, but one United States citizen of Jewish race was killed. The IMO noted with concern the increase in the number of such attacks in a resolution of 20 November 1985 (Res A 584 (14)); and the General Assembly of the UN expressed its concern later in the same year (GA Res 40/61, 9 December 1985). The eventual result of this concern was the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988.4 The Convention has a comprehensive list5 of new offences likely to endanger navigation: such as, the seizure or exercise of control over a ship by force or threat of force or intimidation; an act of violence against a person on board if that act is likely to endanger safe navigation of the ship; destroying a ship or damage to a ship or cargo likely to endanger the navigation; the placing on a ship of a device or substance likely to destroy, or damage the ship or its cargo, or endanger its navigation; destruction or serious damage to ‘maritime navigational facilities’; communication of information known to be false and thereby endangering safe navigation; injuring or killing any persons in connection with the above acts. Attempts and secondary participation are also provided for. The parties undertake to prosecute or extradite offenders, and to cooperate in the prevention of such offences. Presumably the Convention applies to the offences committed on any vessel and not merely on flag vessels of parties. But of course these offences are not analagous to piracy jure gentium. They are not universal offences, but offences against the Convention, or parties to it.

There is a parallel Protocol (of the same date) for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. This extends the Convention provisions in the sense its title implies.6

Footnotes:

Whether the pirate craft also loses its nationality is, however, determined by the law of the state from which such nationality was originally derived. See Art 18 of the Geneva Convention on the High Seas 1958 and Art 104 of the Convention on the Law of the Sea 1982. Conversely, the mere fact that a ship is without a flag does not make it a pirate ship. On the hijacking of aircraft and piracy, see Shubber, BY, 43 (1968–69), p 193. For pirates and insurgents, see McNair, Opinions, i, pp 267–80.

Judge Moore in the Lotus Case (1927), PCIJ, Series A, No 10, at p 70. See also Lord Stowell in the Le Louis [1817] 2 Dods 210, 244.

[1934] AC 586; and see § 19, n 16.

See Art 14 of the Geneva Convention; also the ILC Commentary on the corresponding draft article: ‘Any State having an opportunity of taking measures against piracy, and neglecting to do so would be failing in a duty laid upon it by international law. Obviously, the State must be allowed a certain latitude as to the measures it should take to this end in any individual case.’ See also Art 100 of the 1982 Convention.

Judge Moore, Lotus Case (1927), PCIJ, Series A, No 10, at p 70. The conception of piracy jure gentium was also discussed in The Republic of Bolivia v The Indemnity Mutual Marine Assurance Co [1909] 1 KB 785; and later at some length in Re Piracy Jure Gentium [1934] AC 586.

See also Johnson, Grotius Society, 43 (1957), pp 63–85 on the ambit of the concept of piracy in the modern law.

These definitions follow in substance the draft Art 39 of the ILC’s Report on the Law of the Sea (YBILC (1956), ii, p 282), except that the latter had omitted any reference to aircraft. It was stated in the Commentary that: ‘(v) Acts of piracy can be committed not only by ships on the high seas, but also by aircraft, if such acts are directed against ships on the high seas’. The Convention provisions, however, clearly assimilate ships and aircraft both as subjects and objects of piratical acts, whereas it had been the view of the ILC that ‘acts committed in the air by one aircraft against another aircraft can hardly be regarded as acts of piracy … However, acts committed by a pirate aircraft against a ship on the high seas may, in the Commission’s view, be assimilated to acts committed by a pirate ship.’ This view is by implication rejected in the Conventions. See also Johnson, Grotius Society, 43 (1957), p 67, note.

See § 273 of 8th ed of this vol for discussion of privateers and letters of marque. See also Genet, AJ, 32 (1938), pp 253–63, and RIF, 3 (1937), pp 12–25, and ibid, 5 (1938), pp 280–84, and authorities there cited. Also Public Prosecutor v NCJ (1977), ILR, 73, p 374, where the District Court of The Hague held raiders ‘possessed of no authority so to act’ to be pirates.

See also the ILC Commentary (p 282) to draft Art 39: ‘(iii) Save in the case provided for in Article 40, piracy can be committed only by private ships and not by warships or other government vessels’.

See Art 16 of the Geneva Convention on the High Seas 1958; and Art 102 of the Convention on the Law of the Sea 1982.

The Soviet Union and associated states at one time took the view that public craft could be guilty of piracy. Its view was put forcibly in discussions prior to the 1958 Geneva Conference. See Johnson, Grotius Society, 43 (1957), pp 63–85. But this was no longer an issue at UNCLOS III, which was content to repeat the 1958 Convention provisions in relation to piracy.

Formerly there was the complication of private vessels having taken out letters of marque as privateers. Of these it was said (see 8th ed of this vol, p 610) that a privateer is not a pirate as long as its acts of violence are confined to enemy vessels, because such acts are authorised by the belligerent in whose services it is acting. It matters not that the privateer was originally a neutral vessel (see Hall, § 81). But if a neutral vessel were to take letters of marque from both belligerents, it would be considered a pirate.

In a Convention on the Duties and Rights of States in the Event of Civil Strife, adopted in February 1928 by the Sixth International American Conference, it is laid down that a declaration of piracy, emanating from a government, against an insurgent vessel is not binding upon other states. But such other state, if injured by the activities of the vessel, may, if it is a warship, capture it and send it to its home state for trial; in the case of merchant vessels the injured state may punish the vessel according to its own laws: AJ 22 (1928), Suppl, p 160. The same Convention provides that if the insurgent vessel arrives in the territory of a contracting party, the vessel must be handed over to the lawful authorities of the home state and that the members of the crew must be considered as political refugees. In 1929 the USA refused to treat as piratical the Falke, a vessel registered in Germany which was boarded by Venezuelan rebels and taken to Venezuela with a cargo of munitions on board. For a report of the incident, see RG, 38 (1931), pp 341–4. But see Castle John & Another v Mabeco & Another, ILR, 77, p 537, where the Belgian Court of Cassation in 1986 held members of an ‘environmental’ group called ‘Greenpeace’ who boarded, occupied and damaged two vessels (Dutch) on the high seas, guilty of piracy jure gentium and thus subject to Belgian jurisdiction, because the acts, themselves in contravention of Art 15 of the Geneva Convention on the High Seas 1958, were committed for ‘private ends’, being ‘in furtherance of a personal point of view on a particular problem’.

See Calvo, i, paras 497–501; Hall, § 82; Westlake, i, pp 183–6; Keith’s Wheaton, pp 278–84.

But in the American case of The Ambrose Light (1885) 25 Fed 408 (see also Moore, ii, § 332, p 1098) the Supreme Court did not agree with this. The Ambrose Light was a brigantine which, when sighted on 24 April 1885, by Commander Clark of the US ship Alliance in the Caribbean Sea, was flying a strange flag showing a red cross on a white ground, but which afterwards hoisted the Colombian flag; when seized it was found to carry 60 armed soldiers, one cannon, and a considerable quantity of ammunition. It bore a commission from Colombian insurgents, and was designed to assist in the blockade of the port of Carthagena by the rebels. Commander Clark considered the vessel to be a pirate and sent it in for condemnation. The Supreme Court held that in the absence of any recognition of the Colombian insurgents as a belligerent power the Ambrose Light had been lawfully seized as a pirate. The vessel was, however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Colombian Government. For a survey of the practice of the Supreme Court, see Lenoir, Journal of Criminal Law, 25 (1934), p 532. The Pan-American Convention of February 1928 (see AJ, 22 (1928), Suppl 160) provides in effect that vessels which have risen in arms against their government must not be treated as pirates even if they have committed depredations upon vessels of the state concerned (Art 2).

See Pitt Cobbett, Cases on International Law (ed Walker, 5th ed, vol i, 1947), p 319. However, it appears that no prosecution in England would take place in such cases. The Attorney-General, in answering in the House of Commons a question by Sir William Harcourt, said: ‘In strictness they were pirates, and might have been treated as such, but it is one thing to assert that they had been guilty of acts of piracy, and another to advise that they shall be tried for their lives and hanged at Newgate’, Parliamentary Debates, 3rd series, vol 236, pp 787ff. See also McNair, Opinions, i, pp 274–80. As regards the case of the Argentinian vessel Portena and the Spanish vessel Montezuma, afterwards called Cespedes, see Calvo, i, paras 502 and 503.

See McNair, Opinions, ii, 358–65.

For a survey of the practice of states in the matter, see Lauterpacht, RG, 46 (1939), pp 513–49. See The Ambrose Light (1885) 25 Fed 408; The Three Friends (1897) 166 US 1, at p 63.

See eg the instructions of the US Secretary of State to the Minister in Spain in 1823 laying down that ‘acts of piratical aggression and depredation may be committed by vessels having lawful commissions as privateers …’: Manning, Diplomatic Correspondence of the United States concerning the Independence of Latin-American Nations (vol i, pt ii, 1925), p 167. See also ibid, p 176. See also The Magellan Pirates, 1853, 1 Spink’s Eccl and Adm Rep 81, where Dr Lushington said (obiter); ‘Even an independent state may, in my opinion, be guilty of piratical acts … I am well aware that it has been said that a state cannot be piratical; but I am not disposed to assent to such a dictum as a universal proposition’.

10  Cmd 5568 (1937). The Argument provided that any submarine attacking vessels not belonging to one of the parties to the Spanish Civil War, in a manner contrary to international law, shall, if encountered in the vicinity of the attack, be counter-attacked and, if necessary, destroyed by the forces of the parties to the Agreement.

11  For criticism of this use of the term ‘piracy’, see Genet, RIF, 3 (1937), pp 12–25, and ibid, 5 (1938), pp 280–84; Mirwart, RI, 3rd series, 19 (1938), pp 341–52; Anon, BY, 19 (1938), pp 198–208. But see Padelford, AJ, 32 (1938), pp 271–9 and Lauterpacht, RG, 46 (1939), pp 513–49. See also Finch, AJ, 31 (1937), pp 659–65 and Schmitz, ZöV, 8 (1938), pp 641–71. And see de Montmorency, LQR, 35 (1919), pp 133–42, and Pollock, ibid, p 211; Hyde, i, p 231; Fauchille, § 483 (51).

12  Cmd 1627; AJ, 16 (1922), Suppl, p 67.

13  See, for instance, with regard to the Declaration that destruction of submarine cables shall be dealt with as an act of piracy, the Opinion of the British Law Officers of 18 May 1870, United States, No 779. The use of the term ‘piracy’ in connection with slave traffic or acceptance of letters of marque in breach of treaties or of general international law is a frequent occurrence in diplomatic practice. On robbery and brigandage as an international crime analogous to piracy, see Cowles, Calif Law Rev, 33 (1945), pp 188–216.

14  See YBILC (1956), ii, p 282: ‘the Commission is aware that there are treaties such as the Nyon Arrangement of 14 September 1937, which brand the sinking of merchant ships by submarines, against the dictates of humanity, as piratical acts. But it is of the opinion that such treaties do not invalidate the principle that piracy can only be committed by private ships. In view of the immunity from interference by other ships which warships are entitled to claim, the seizure of such ships on suspicion of piracy might involve the gravest consequences. Hence the Commission feels that to assimilate unlawful acts committed by warships to acts of piracy would be prejudicial to the interests of the international community. The Commission was unable to share the view held by some of its members that the principle laid down in the Nyon Arrangement confirmed a new law in process of development. In particular, the questions arising in connexion with acts committed by warships in the service of rival Governments engaged in civil war are too complex to make it seem necessary for the safeguarding of order and security on the high seas that all States should have a general right, let alone an obligation, to repress as piracy acts perpetrated by the warships of the parties in question.’

15  This limitation of piracy to acts committed for private ends created an ambiguity in relation to acts of terrorism: but see § 305.

See 8th ed of this vol, p 614.

See YBILC (1956), ii, p 282.

See the Santa Maria incident (1961), Whiteman, Digest 4, pp 665–7; here a Portuguese, passenger liner was seized in mid-Atlantic by men who had boarded as passengers, and who were supporters of General Delgado, an opponent of the Portuguese President. One crew member was killed and others injured. The ship was eventually handed over in Brazil, which country also gave the men political asylum. See Frank, NYULR, 36 (1961), p 389; also in Mueller and Wise (eds), International Criminal Law (1965); and Goyard, RG, 66 (1962); see also Green, BY, 37 (1961), p 496, for an extended and learned note.

See Article 101 of the 1982 Convention.

See the Reference under the Judicial Committee Act 1833, Re Piracy Jure Gentium, in which the Judicial Committee held that actual robbery is not an essential element in the crime of piracy jure gentium and that, therefore, a frustrated attempt to commit a piratical robbery is piracy jure gentium: [1934] AC 586; AD, 7 (1933–34), No 89; AJ, 29 (1935), p 140; Fairman, ibid, pp 508–12.

In the case of the Ambrose Light — see § 300, n 5 — the Supreme Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.

Yet an act committed within territorial or internal waters may be ‘piracy’ according to the local, territorial law, even if not piracy jure gentium; see Athens Maritime Enterprises v Hellenic Mutual War Risks Association [1983] QB 647; ILR, 78, p 563 (‘piracy’ in Bangladesh territorial sea); also Cameron v HM Advocate (1971), ILR, 56, p 243 (Scotland).

See YBILC (1956), ii, p 282. The ILC Commentary gives the rationale of this rule as a desire ‘to prevent such acts committed on ownerless territories from escaping all penal jurisdiction’. It is a moot question how far Art 15(1)(b) of the Geneva Convention would apply to Antarctica.

See Art 19 of the 1958 Geneva Convention; also Art 102 of the 1982 Convention.

The wording of these articles is based upon the view of the ILC (YBILC (1956), ii, p 283) that the right of seizure ‘cannot be exercised at a place under the jurisdiction of another State’. But earlier editions of the present work suggested that if a pirate is chased on the open sea and flees into the territorial maritime belt, the pursuers may follow, attack, and arrest the pirate there; but they must give him up to the authorities of the littoral state (see 8th ed of this volume, p 616). Article 7 of the Harv Research also allowed seizures within the jurisdiction of a state if pursuit began elsewhere and notice is given to the state in which seizure is made.

The question as to the property in the seized piratical vessels, and the goods thereon, has been the subject of much controversy. During the 17th century, the practice of several states conceded such vessel and goods to the captor as a premium. But during the 18th century, the rule pirata non mutat dominium became more and more recognised; on which see Wortley, BY, 24 (1947), pp 258–72. Article 19 of the Geneva Convention, accordingly, as also Art 105 of the 1982 Convention, leaves a large discretion to the municipal courts of the seizing state whilst safeguarding the rights of third parties, which presumably includes the rightful owners in good faith.

A few writers (Gareis in Holtzendorff, ii, p 575; Liszt, Das Völkerrecht (12th ed, 1925), § 36 (iv); Stiel, Der Tatbestand der Piraterie (1905), p 51) maintained that only warships have the power to seize the pirate. The 8th ed of the present work allowed the right to merchantmen. See, for a compromise view, Harv Research (1932), p 846, where it is suggested that the seizure may be made only on behalf of a state and only by a person authorised to act on behalf of it. The ILC (YBILC (1956), ii, p 283), allowed it only to warships or military aircraft (draft Art 45).

Article 21. Article 107 of the 1982 Convention adds the requirement that they should be clearly marked and identifiable as being on government service.

See ILC Commentary, loc cit, p 283: also McDougal and Burke, The Public Order of the Oceans (1962), p 878.

Article 20 of the Geneva Convention. Article 106 of the 1982 Convention is identical

See, however, the Lotus case discussed at § 141 and § 291, n 1.

See Wharton, iii, § 327, pp 142, 143; Moore, Digest, ii, § 310, pp 941–6.

See The Times (London), 8 October 1985. See also Pancracio, AFDI, 31 (1985), pp 221–36; and Cassese, Violence and Law in the Modern Age (1988). See also the attacks on board a Greek cruise ship with 570 passengers, in which attack eight people died (The Times (London), 12, 13 July 1988). For the whole question of maritime terrorism see Francioni, Germ YBIL, 31 (1988), pp 263–88.

Misc 15 (1989), Cm 884. The depository is IMO. See Boyle, ICLQ, 39 (1990), pp 27–56.

Article 3.

See Freestone, International Journal of Estuarine and Coastal Law, 3 (1988), pp 305–27; and see Francioni, loc cit, p 18, n 3.

There are of course other instances where states agree to some pooling of jurisdiction on the high seas in order to control obnoxious traffic. For the slave trade, see § 141. For UK/USA cooperation over the control of drug smuggling, see ILM, 21 (1982), p 437, and Siddle, ICLQ, 31 (1982), pp 726–47. For the problem of jurisdiction over delinquent vessels and law enforcement in the maritime environment generally, see Shearer, ICLQ, 35 (1986), pp 320–43).