The history of Piracy and Pirates can be studied from the viewpoint of many vocations; including, technological, sociopolitical, or criminological. However, piracy and pirates can also be looking at from a legal perspective. The relevance of study piracy from the prism is best illustrated by considering what piracy and pirates are. Piracy was a crime, a violation of the law. Pirates are a class of criminals whose primary crime was piracy.
As piracy is a crime their must be in existence specific laws on the subject. Like all criminal laws, the laws regarding piracy serve to define what actions or combination of action or omissions would constitute piracy. Like all laws, the laws relating to piracy have a source. The Source for laws includes customs, statues, and treaties. The law also provides for finality. Laws sometimes have exceptions. The exception to the general law of piracy is privateering. Finally, the law of piracy provides procedures for the prosecutes of pirates and for the alleged pirate to defend against those charges.
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II. Law of Piracy and its sources.
There are many laws on piracy regarding the law defining piracy; however, it is possible to assemble a definition of piracy. An individual is guilty of piracy if he disposes and “carries away” or attempts to dispossess and carry away another’s vessel its cargo or passengers property on this said vessel, or be the commander or member of the crew of a ship used as a platform for the completed or attempted act of piracy. All the aforementioned conduct will unless the crew conducting the piratical act is acting under and according to a letter of marque or otherwise functioning as a state apparatus. Furthermore, for one to be guilty of piracy, the piratical act must take place in international waters, which exist at least 3 miles from the coast of the mainland. The law banning piracy would not limit itself to people engaging in traditional acts of piracy; the law also classifies people knowingly helping or involving themselves with pirates as pirates themselves. The type of help or involvement classified as piracy includes conspiring with the pirates, financing the pirates, procuring items to be used by pirates, holding stolen goods for them, advising them, directing from shore, giving them equipment, or helping them recruit, etc.
The sources of these laws banning piracy varied. Like all laws, much of the laws banning piracy were customary law or international customary law. Customary law is created over time based on a significant number of people or entities engaging in or not engaging in an activity based on a belief of a legal duty or legal right. During the age of discovery, later countries such as England began to use statutes against piracy. These early statutes, such as the offenses at Sea act of 1535 and the Piracy act of 1698, stated that piracy was illegal and the procedure to be used in Piracy cases. However, in England, these statues did not completely overthrow the customary law regime. These statutes, such as the Piracy Acts of 1698, and 1717 usually did not generally define piracy and allowed the question of what activities constituted piracy to be answered by customary law. In terms of defining what acts constituted piracy, the early statues only described specific acts as piracy if those actions were not considered under customary law. As such, any description of acts constituting piracy was not a codification of preexisting customary law but an expansion on what activities were defined as piracy. The statues, therefore, served as a legal tool for governments to treat select maritime crimes with gravity and penalties of piracy. Examples of this practice are included in 1698 and 1744 Piracy acts aThepiracy statute expanded the customary definition of piracy to include the traitorous act of its citizens serving on an enemy privateer as piracy if English ships are targeted for attack. Also, in 1698 the British government revised the law of piracy to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of numbers of acts statutorily classified as piracy continued into the 19th century. In 1824 the British Parliament would follow the United States Congress in expanding the legal definition of piracy to include the oceanic transportation of people to be used as slaves. Notwithstanding the British parliaments broadening the definition of piracy, before 1997, the British statute did not generally define what acts constitute piracy. In its 1997 Maritime security act wrote verbatim the United Nations convention the law of the sea. Latter treaty would ban piracy.
Of course, no discussion of piracy would be complete without discussing the legal form of piracy known as privateering. Privateering involved the state granting private merchant mariner’s licenses know as letters of marque, legally entitling the licensed mariner to rob ships of enemies and pirates. By operating under and within the letter marque’s scope, an act that would nominally be classified as piracy would not be legally definable as piracy. A licensed privateer was immune from a charge of piracy from the country that issued the license and from all other nations, including those whose shipping was attacked by the privateer. The customary international law demanded that other nations give a letter of marque full faith and credit and not consider its holder a pirate. Customary international law defined privateers as legal members of their country’s services engaging in a legal military operation. As a member of his ccountry’sservice, he was immune from criminal charges for killing done in pursuit of privateering, and if captured, he had to be granted prisoner of war status. It was very much like piracy, notwithstanding its legal status—the privateers were motivated by profit. After paying the State a share of the prize, they could keep the rest.
The institution of privateering gave all involved, including the captains, the crew, and owners of privateering ships, a huge legal and financial windfall. In exchange for these amenities, privateers were bound to rules. To begin with, their status as a privateer was dependent on the holding of a letter of marque licensing acts which would otherwise be piracy. The letter of Marque, while addressed to the present Captain, is not held by the present captain as an individual. The rights granted by letter instead vested in the office of the captain of the ship that was intended to be used as the privateering vessel; the individual captain exercised those rights as an officeholder. If the ship changes commands, the rights and restrictions set in a letter will remain held by the captain’s office and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process and the official with the right to grant such a license varied depending on the nation. In Great Britain, the right to issue a letter marque was nominally vested in the lord high admiral, the head of the British Admiralty who issued these licenses in the name of King. In most of the American and Caribbean Colonies the Lord Admiral usually deputized a local official, the Colonies Governor, as the Colonies Admiral or Vice-Admiral with the power to handle local maritime matters, including the issuance of letters marque. . By allowing locals colonial governors the power to issue letters of marques the process was decentralized. When hostiles broke out between the various empires, British colonial governors could rapidly commission large numbers of privateers to target tits enemies military and economic assets The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Brazilian and Henry Morgan; these men often targeted noncombatants with fierce forms murder and torture as means to terrorize their victims into surrendering their wealth. However, despite their cruelty, these privateers were extremely effective. They destroyed or stole much of Spain’s colonial wealth, recaptured colonies, and helped ensure British dominance. The decentralized process involved in issuing letters marque allowed the British government to deny responsibility for the actions of the privateers while reaping rewards of her wayward privateers. If the British Government received foreign protests, they could state its inability to micromanage its governors located thousands of miles away. If an individual privateer committed an atrocity, the British government sometimes would completely deny responsible and say as far they know privateer is acting without a letter marque. In analyzing the process of the issuing of letters of Marque was extremely lax. Many of the people who were issued letters of Marque abused their privileges or degenerated into outright piracy. Virtually every major Caribbean Pirate began their career as captain or crew member on an. The Spanish had similar procedures in licensing pirates as the British. The Dutch outsourced the right to issue letters of marque to the Dutch West Indies Company, the premier international trading company. However, the country whose privateering licensing protocol was most unique was the United States. The licensing authority was more centralized than in other countries. The steps required to be granted a U.S. letter of marque were also far more rigorous than those of other countries.
In the United States, the Constitution allows only the US Congress to issue letters of Marque. This means a would-be privateer would only receive a letter of marque if and when both houses of Congress vote for it and it passes and, like any other act of Congress, it was signed by the U.S. President. This highly rigorous process was likely intended to screen out undesirable elements attracted to privateering.
Once a privateer captain was granted the letter of marque, he would be subject to the rules stated in the letter of marque—the contents of the letter of marque state terms and parameters that its holders are legally obligated to follow. The letters of Marque would provide for vital aspects of the mission. It would state who the holder was entitled to target, the methods he could use, what date or event would cause the letter of marque to expire, and the percentage that monarch or State was entitled to. These terms were important because, in some cases, a violation could be seen as an act of piracy. Of these terms, perhaps the most are the term who its holder could attack. The terms would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards pirates, state that it applies to all pirates. This term was significant because privateering was considered an act of war. Suppose a privateer went beyond his commission and attacked the ships of a country that was not at war with the privateer’s country that could force the privateer’s country into the unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior and charged privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To comply with the law, the holder of a letter of marque could not even attack the ships of a country with the nation which issued the letter of marque was war if that specific countries shipping was not mentioned in the letter of the marque. To remedy this problem, privateers, including William Kidd, made it a practice to secure multiple letters of marques to cover any enemy of England whose ship they would be likely to have an opportunity to rob in their privateering expedition. Privateering licenses might also limit actions and tactics a privateer could use against an enemy. These limitations might limit the degree of force he could use and the targets and locations he could attack. In William Kidd’s ill-fated privateering mission, he was instructed to attempt to take alive the pirates attempted to attach. These terms were not always abided by. The buccaneer pirates were notorious for attacking locations and using methods forbidden in terms of the letters marques. The states that issued the letters of marque often turned a blind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued by the Dutch and the French were only valid for 6 months. The English letters were valid until peace was signed.
A final demand on privateers is that they pay a share to the government or monarch who licenses them. For English kings, this tended to be ten percent of the gross amount of prizes. For the English king, the piracy awards were an important part of his income since he needed Parliamentary approval to create taxes.
Privateering was widely used from before the age of discovery until the post-Napoleonic error. However, in mid 19th, countries began to take steps to end privateering. In 1856 the large European powers signed the Declaration of Paris, which banned privateering. “Privateering is and remains abolished.” The Declaration of Paris does not end the discussion about the legality of privateering. The Declaration is automatically binding on a nation that signed and ratified or later acceded to it as a treaty. Not all countries signed and ratified, including the United States, Mexico, Spain, and others. Furthermore, many current countries were colonies at ratification and thus were not a party to the treaty. While the treaty does not automatically bind these nations just by existence, there is an alternative avenue that the Declaration of Paris, which could ban privateering. The Declaration would be binding on all countries if it evolved international Customary. A treaty will evolve international customary law if it is norm creating. It was universally acceded to or ratified by the world’s nations, especially those most affected by the treaty. Finally, the treaty must have been enforcing for a sufficient amount of time. The rule is clearly norm creating, its states a clear rule that “privateering is abolished this as stand-alone passage clear rule of conduct the privateering is abolished it furthers deals with general policy or norm and not a specific policy for achieving the general policy. The Declaration of Paris has been in force for 150 years; thiss amount of time is clearly long enough for the entire international community to become aware of it. The final criteria require that the treaty have widespread ratification, especially by States that the most relevant provisions. This criterion is probably the criteria that the Declaration of Paris’s existence as customary law most falls short. At the same time, the Declaration of Paris had widespread acceptance. Several countries did not ratify, including the US, Mexico, Spain, and various nonmaritime states. Furthermore, many countries which did not exist at the time it was ratified now exist and have not ratified it. In considering who is most affected by the ban on privateering, countries with smaller navies use privateering to supplement their navy. Matthew time of the treaty, many countries that refused to ratify were countries wthat were not considered naval powers at the time,including U and Mexico. Countries that existed but had no maritime force also did not bother to ratify it. In addition, many of the countries which exist now but did not exist contemporarily with the creation of the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such, there is an argument that the Declaration of Paris does not fulfill the criteria of widespread acceptance and therefore has met the perquisites necessary for a treaty provision to evolve into customary law. As such, for countries that never ratified the Declaration of Paris, there is an argument that they could be legally allowed to issue letters of Marque.