Pirates, Buccaneers and Privateers: Concepts of International Law

Nowadays, it seems impossible to believe that in our world of ultramodern computer and satellite guided supertankers and container ships, steered only by a handful of crewman, a historic anachronism as piracy has all but vanished from the world’s seas. Modern-day pirates in bare, wooden boats, often primitively armed, from the Puntland region of Somalia or from the shores of the Strait of Malacca have come to hunt their prize, making high-profile seizures and wresting multimillion dollar ransoms from global corporations. This resurgence of modern piracy captured the world’s headlines and attracted the attention of the international community. Foreign powers initiated anti-piracy efforts by deploying warships into the international waters of the Gulf of Aden. Regional coordinating hubs, such as MARLO, MSC-HOA and other international monitoring agencies were set up. With the expansion of many national jurisdictions into adjacent territorial waters and a continuing irresolution over piracy trials internationally, the matter still hasn’t been resolved. Any study of piracy inevitably raises the issue of (legal) definition. In international law, the definition of piracy is relevant because any confusion in terminology invariably leads to debates between State sovereignty and universal jurisdiction over crimes committed at sea. In the following, we will discuss some of the current definitions of piracy in international law, but first a short historical perspective on piracy in general.

Historical Perspective on Piracy

Piracy is of ancient origin. What is today remembered as the Golden Age of Piracy of the late 17th and 18th centuries had grown out of a period of maritime expansion. The Spanish Empire’s desire to monopolize its discovery of the Americas soon had been contested by other West European nations and seafaring adventurers of mainly English, Dutch or French origin. Daring fighters and seamen as the Englishmen Sir Francis Drake, Sir Richard Hawkins, and the Dutchman Piet Hein received official government commissions or authorizations (so called letters of marque) to commence naval warfare on Spanish ships, in the Caribbean and off the coasts of North America. Inspired by the successes and obtained wealth of these privateers, groups of wandering pirates, often called freebooters or buccaneers, began to harass the Spanish colonies in the New World, particularly during the second half of the 17th century. Buccaneers are usually distinguished from privateers, because they rarely had valid commissions. They are also distinguished from pirates who attacked ships of all nations. This lawless form of piracy was outlawed and at last checked during the early 18th century, when general peace was restored. Pirates were hunted down by the English Royal Navy or by licensed bounty-hunters. Piracy waned in the latter part of the 18th and early 19th centuries, but never really disappeared completely.

Piracy in International Law

As mentioned above, piracy should be distinguished from privateering. "Privateer" in international law, is the term applied to a privately owned armed vessel whose owners are commissioned by a hostile nation to carry naval warfare. The practice of privateering preceded the creation of national navies. European States having few or no warships hired merchant vessels for hostile purposes. By issuing naval commissions or authorizations to shipowners or procurers, these States created therefore a legitimate form of war-like activity by non-State actors. By way of compensation, privateers were allowed to share any booty captured. Privateering came into general use, but was first renounced and outlawed by the Peace of Westphalia (1648) for signatories to those treaties. Two centuries later, privateering was abolished on the international level by the Declaration Respecting Maritime Law (Paris, 16 April 1856), but the Declaration was not supported by the United States, Spain, Mexico and Venezuela. During the American Civil War, Congress authorized the President to commission privateering in 1863, but this power was not exercised. The Confederacy, however, engaged several times in privateering. Finally, privateering was officially renounced by the United States during the Spanish-American War of 1898.

Establishing an authoritative definition of "piracy" in international law has always been rather problematic. The definition is relevant, as said above earlier, because any confusion in terminology invariably leads to debates between State sovereignty and universal jurisdiction over crimes at sea. There are numerous meanings of the word piracy with no direct legal implications. Just look it up in any dictionary! The various international law meanings of piracy are derived from, among others, international treaties, and various municipal law meanings are defined by statutes and State practice. The first more precise and detailed definition of piracy has been formulated in Article 15 of the Convention on the High Seas (Geneva, 29 April 1958), and Article 101 of the United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) :  

Article 15 / Article 101, Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or 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).

These articles are generally recognised as providing the definition of piracy in international law, but proved insufficient. Piracy was still a relatively minor issue during the first United Nations Conference on the Law of the Sea (UNCLOS I) in 1956. More concerned with economic interests such as ownership of offshore resources and fishing grounds, even Western nations had not been unduly concerned by the sparse instances of piracy occuring that time. Historically, piracy had been dismissed as a crime which fell under what was then known as "universal jurisdiction". Any such outlaws could be summarily tried by any government that captured them. And those were scarce as only a handful of Western sea powers had been in a position to do so. But how was the issue of universal jurisdiction to be understood? It is clear that the definition of piracy was not updated to take into account the development of the modern regime of maritime zones and remained trapped in a period where the high seas were only three miles from shore. Could piracy only be committed on the high seas, or could piratical acts also be perpetrated in territorial waters or in ports? Given the fact that the majority of piracy acts reported today take place in waters within the jurisdiction of newly emerged States, claiming their own expanding territorial waters, this problem is growing more complicated. Another problem is the limitation of piracy to private motivations, such as personal gain, thus exempting politically driven actions. Even such an abbreviated definition of piracy as "any armed violence at sea which is not a lawful act of war" could easily be questioned by insurgents or revolutionary fighters pointing out that personal gain was not their objective, rather a national (liberation) cause. Finally, the conventions require member States to cooperate in prosecuting piracy, but there is no mechanism to enforce this. Rather, member States must incorporate provisions into domestic law before they can prosecute acts of piracy. Yet, few States have taken this essential step.

Another international instrument, that governs piracy and provides a jurisdictional basis for nations to prosecute such acts domestically, is the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 10 March 1988). Drafted in response to the Achille Lauro incident, the SUA Convention was enacted, at least in part, to ensure that politically motivated attacks on ships could be prosecuted as acts of piracy. Although the SUA Convention does appear to broadly prohibit offenses that are more consistent with modern-day piracy, the Convention is flawed for several reasons, see Dutton, pp. 208-209.

In municipal law, various definitions of the term piracy are in use. It has been extended to cover crimes other than those defined above, such as slave trading. A sovereign State has the power to declare offenses to be piracy that are not so regarded by international law. These municipal laws can have binding force only in the jurisdiction creating them. As new types of piracy resurge nowadays, the international community has to decide to act and bring pirates to justice. Piracy is a serious crime of international concern that is only increasing in frequency and severity. Although the international community may be thwarting some pirate attacks, what it is not doing now is sending pirates a message that piracy will not be tolerated. Recent developments show that first steps have been taken. In its Resolution 1918 (2010), the UN Security Council is calling on member states to criminalize piracy under their domestic laws and urging the Secretary-General to consider an International Tribunal for prosecuting piracy. Others suggest that pirates can be brought to justice using the already extant International Criminal Court by way of an optional protocol to include piracy within the Court's jurisdiction.