The history of pirates and pirates can be studied from the viewpoint of many vocations, including technological, sociopolitical, or criminological. However, piracy and piracy can also be viewed from a legal perspective. The relevance of studying 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 is piracy.
As piracy is a crime, specific laws on the subject must exist. Like all criminal laws, the rules regarding piracy serve to define what actions or combinations of acts or omissions would constitute piracy. Like all laws, the restrictions relating to piracy have a source. The Source for conventions includes customs, statutes, and treaties. The law also provides for finality. Laws sometimes have exceptions. The exception to the general direction of piracy is privateering. Finally, the law of piracy provides procedures for prosecuting pirates and for the alPiratePirate 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 conduct above will be unless the team conducting the piratical action acts under and according to a letter of marquMarquetherwise functioning as a state apparatus.
Furthermore, for one to be guilty of piracy, the piratical act must occur 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; it also classifies people knowingly helping or involving themselves with pirates as pirates. 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 them from shore, giving them equipment, helping them recruit, etc.
The sources of these laws banning piracy varied. Like all laws, many 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, these statutes did not completely overthrow the customary law regime in England.
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 determining what acts included piracy, the early statutes only described specific acts as piracy if those acts were not considered under traditional law. As such, any description of acts constituting piracy was not a codification of preexisting customary law but an expansion of what activities were defined as piracy. The statutes, 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 the 1698 and 1744 Piracy Acts.
The piracy statute expanded the customary definition of piracy to include the treacherous 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 piracy law to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of the number 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 enslaved. Notwithstanding the British parliament 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 SSea. The latter treaty would ban piracy.
III. Privateering
Of course, no discussion of piracy would be complete without discussing the legal form of privateering. Privateering involved the state granting private merchant mariners’ licenses, known as letters of marquMarqueally 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 Piratepirate.
The customary international law demanded that other nations give a letter of marquMarque faith and credit and not consider its holder a pirate. Customary international law defines privateers as legal members of their country’s services engaging in a legal military operation. As a member of his country’s service, 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 much like piracy, notwithstanding its legal status—the privateers were motivated by profit. They could keep the rest after paying the stake a share of the prize.
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 pirates depended on holding a letter of marque licensing acts, which would otherwise be piracy. While addressed to the prCaptainaptain, the letter of Marque is not owned by the cuCaptainaptain as an individual. The rights granted by letter instead vested in the office of the CsCaptainaptain were intended to be used as the privateering vessel; the individual 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 captain.
Only a state party authorized party could issue a letter of marquMarque 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 gave these licenses in the name of the King. In most 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 issuing letters of Marque. The process was decentralized by allowing provincial colonial governors the authority to issue letters of Marque; when hostiles broke out between the various empires, British colonial governors could rapidly commission large numbers of pirates to target tits enemies’ military and economic assets.
The pirates whom the British Colonial governors licensed included notoriously brutal men such as Roche Brazilian and Henry Morgan; these men often targeted noncombatants with fierce forms of murder and torture as a means to terrorize their victims into surrendering their wealth. However, despite their cruelty, these pirates 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 of marquMarquewed the British Government to deny responsibility for the pirates’ actions while reaping the 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 MarquMarque, it is extremely lax. Many people who were issued letters of MarquMarqueed their privileges or degenerated into outright piracy. Virtually every major CariPiratePirate began their career as a Captain or crew member on an. The Spanish had procedures similar to those of the British in licensing pirates. The Dutch outsourced the right to issue letters of marquMarquehe Dutch West Indies Company, the premier international trading company. However, the United States was the country whose privateering licensing protocol was most unique. The licensing authority was more centralized than in other countries. The steps required to be granted a U.S. letter of marquMarque are also far more rigorous than those of other countries.
In the United States, the Constitution allows only the U.S. Congress to issue letters of MarquMarques, which means a would-be privateer would only receive a letter of marquMarquend 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 marquMarquewould be subject to the rules stated in the letter of marquMarquecontents of the letter of marque state terms and parameters its holders are legally obligated to follow. The letters of MarquMarqued 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 marquMarquexpire, and the percentage the monarch statute 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 those whose holder could attack. The words would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards pirates, note 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 Pirate’s land, which could force the privateer’s land into 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 marquMarqueutright pirates. To comply with the law, the holder of a note of marquMarqued not even attack the ships of a country with the nation which issued the letter of marquMarquewar if that specific country shipping was not mentioned in the letter of marquMarqueremedy 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 a privateer’s actions and tactics 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 the pirates who tried to attack alive. These terms were not always abided by. The buccaneer pirates were notorious for shooting locations and using methods forbidden regarding the letters marques. The states that issued the letters of marqu marquee disregarded such violations. The articles of the note of marquMarquetimes provided for its expiration. Letters of marquMarqueed by the Dutch and the French were only valid for six months. The English letters were proper until peace was signed.
A final demand on privateers is to pay a share to the Government or monarch who licenses them. This tended to be ten percent of the gross prizes for English kings. The piracy awards were an important part of his income for the English King 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 the 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 automatically binds 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, etc. 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: the Declaration of Paris, which could ban privateering. The Declaration would bind all countries if it evolved into international custom. A treaty will become 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 enforced for a long time.
The rule is norm-creating; It states that “privateering is abolished. This is a stand-alone passage. The clear direction of conduct of privateering is abolished. It further deals with general policy or norm, not a specific procedure for achieving the public approach. The Declaration of Paris has been in force for 150 years, long enough for the entire international community to become aware of it. The final criteria require the treaty to be widely ratified, especially by states with 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 U.S., Mexico, Spain, and various nonmaritime states.
Furthermore, many countries that did not exist when it was ratified now live 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’s time of the treaty, many countries that refused to ratify were not considered naval powers, including the U.S. and Mexico. Countries that existed but had no maritime force also did not bother to approve it. In addition, many countries that exist now but did not live contemporarily with the creation of the Declaration of Paris have yet to confirm 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.
