Pirates, Piracy and the Law

Posted on Feb 5 2020 - 3:58pm by Rohit Shetty

The study of 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 look at from a legal perspective. The relevance of study piracy from the prism is best illustrated by consider 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 custom, statue and treaties. The law also provides for finality. Laws sometimes have exceptions the exception to the general law om piracy is privateering. Finally the law of piracy provides procedures for the prosecutes pirates and for the alleged pirate to defend against those charges.

 

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II. Law of Piracy and its sources.

Regarding the law defining piracy; Their are many laws on piracy however it is possible 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 crew of a ship used as 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 exists at least 3 miles from the coast of the mainland. The law banning piracy would not limit it self 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 include 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 law much of the laws banning piracy were customary law or international customary law. Customary law is created overtime based on a significant number of people or entities engaging in or not engaging an activity based on a belief of a legal duty or legal right. During the age of discovery and latter countries such as England began to use statues as a tool against piracy. These early statues 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 statues 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 defining what acts constituted piracy the early statues only described specific acts as piracy if those actions would not be considered piracy 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 the 1698 and 1744 Piracy acts and piracy statue 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 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. Not with standing the British parliaments broadening of the definition of piracy, prior to 1997 British statue 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.

III. Privateering

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 an enemies and pirates. By operating under and within the scope of the letter marque an act which would nominally be classified as piracy would not be legally definable as piracy. A liscensed privateer was immune from a charge of piracy not only from the country who issued the license but from all other nations including the nation whose shipping was attacked by the privateer. Customary international law of the time 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 his countries service engaging in a legal military operation. As a member of his countries service he was immune from criminal charges for killing done in pursuit of privateering, and if captured had to be granted prisoner of war status. Not with standing its legal status, was very much like piracy. The privateers where 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 where bound to rules. To begin with, their status as a privateer was dependent of 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 office holder. As such, if the ship changes commands the rights and restricts set in letter would remain held by the office of captain and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process as well 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, usually 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 the military and economic assets of its enemies. The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Braziliano and Henry Morgan; these men often targeted non combatants with especially cruel forms murder and torture as means to terrorize their victims into surrendering their wealth. However in spite of their cruelty these privateers where extremely effective they destroyed or stole much of Spain’s colonial wealth recaptured colonies and helped insure 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 way ward privateers. If the British Government received foreign protests they could simply state it’s in ability 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 where issued letters of Marque abused their privileges or degenerated into out right piracy. Virtually every major Caribbean Pirate began their career as captains or crew members on an
The Spanish had similar procedures in licensing pirates as the British. The Dutch out sourced the right to issue letters of marque to the Dutch West Indies Company, the premiere international trading company. However, the countries whose privateering licensing protocol where most unique was the United States. The licensing authority was more centralized then in other countries. The steps required to be granted a U.S. letter of marque where also far more rigorous then 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 indented 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 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 and what date or event would cause the letter of marque to expire, as well as the percentage that monarch or State was entitled to. These terms where important because in some cases a violation could be seen an act of piracy. Of these terms perhaps the most is the term is 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 piratesw state that it applies to all pirates. This term was very important because privateering was considered an act of war. If 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 unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior, and charged its privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To be in compliance with the law the holder of a letter of marque could not even attack the ships of a country at with the nation who the issue 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 as well as the targets and locations he could attack. In William Kidd’s ill fated privateering mission he was instructed to attempt take alive the pirates attempted to attach. These terms where not always abided by, the buccaneer pirates where notorious for attacking locations and using methods forbidden in the terms of the letters marques. The states that issued the letters of marque often turned a bind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued the Dutch and the French where only valid for 6 months. The English letters where 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 where an important part of his income since he needed Parliamentary approval for the creation of taxes.

Privateteering was widely used from prior to 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 Paris does not end the discussion about the legality of privateering. As a treaty the Declaration is automatically binding on nation who signed and ratified or latter acceded to it. Not all countries signed and ratified including the United States, Mexico, Spain and others. Further more many current countries where colonies at the time of ratification and thus where 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, was universally acceded to or ratified by the nations of the world especially those nations who are most effected by the treaty. Finally the treaty must have been enforce 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, this amount time is clearly long enough for the entire international community to become aware of it. The final criteria requires that the treaty have wide spread ratification especially by States that the provisions are most relevant to. This criterion is probably the criteria that Declaration of Paris’s existence as customary law most falls short. While the Declaration of Paris had wide spread acceptance their where a number of countries which did not ratify including the US, Mexico, Spain and various non maritime state. 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 it is countries with smaller navies who use privateering to supplement their navy. Many countries at the time of the treaty that refused to ratify where countries which where not considered naval powers at the time including US and Mexico. Countries which 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 the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such there is argument that Declaration of Paris does not fulfill the criteria of wide spread acceptance and therefore does has met 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.

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