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Piracy: Air and Sea DePaul Law Review Volume 20 Issue 2 1971 Article 2 Piracy: Air and Sea Jacob W. F. Sundberg Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Jacob W. Sundberg, Piracy: Air and Sea, 20 DePaul L. Rev. 337 (1971) Available at: https://via.library.depaul.edu/law-review/vol20/iss2/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. PIRACY: AIR AND SEA* JACOB W.F. SUNDBERG** INTRODUCTION THE STIGMA OF THE TERM ANY contemporary problems arise from the belief that words generally, and legal terms particularly, must have an inner meaning, just like children must have parents. The truth is the opposite. Legal terms have no meaning except in relation to their practical context. The understanding of a legal term means only that one realizes how to use it in communication with others. The terms "pirate" and "piracy" are the topic of the present in- vestigation. Today, they carry with them a stigma ready to be exploited in a divided world characterized by agitation, propaganda and psychological deep-motivation. They are indeed invaluable as- sets in the game of name-calling. But do they mean anything in the legal world? Certainly, they did not have the same stigma from the start. The Greek word "peirates" simply meant an adventurer. Adventurers are often no angels and, indeed, such a famous adventurer as Ulysses did, in perfect innocence, many things which today seem criminal.' Even if associated with Ulysses' most horrid deeds, how- ever, the words are still very far away from the almost universal neg- *This article was prepared for publication in BASSIOUNI AND NANDA (EDS.), A TREATISE ON INTERNATIONAL CRIMINAL LAW (in print, 1972) and is published herein with the kind permission of the author and the editors. ** MR. SUNDBERG is a Professor of Jurisprudenceat the University of Stockholm. He received his law degree from the University of Uppsala, his LL.M. from the New York University Law School, and his doctorate in law from the University of Stockholm. He has authored numerous law review articles in the areas of Air Law, Criminal Law, Private Law, International Law, and Jurisprudence. His books in- elude: AIR CHARTER: A STUDY IN LEGAL DEVELOPMENT (1961); ON THE LIABILITY FOR VICE IN LEASED GooDs (1966); and THE CHANGING FAMILY LAW-STUDIES ON MARRIAGE AND SOCIAL SECURITY (1969). 1. See HOMER, THE ODYSSEY, Book IX, 40 (A.T. Murry ed. -). 337 338 DE PAUL LAW REVIEW (Vol. YX:337 ativism which is today coupled with them. Having developed through the years into names for exceptionally horrible people and acts, the terms have acquired such a negative emotional appeal that one is apt to question why. Much of this appeal, presumably, comes from such books as Marr- yat, The Pirate and the Three Cutters (1830's), chapter nine of which describes in frightful detail the practices of the pirates of Cap- tain Marryat's active days at sea. Some of the appeal, probably, has another source as well. One should not disregard the handing down through the generations of the traditions of antiquity, even if the per- tinent texts of the Roman law-books only deal with the pirates' posi- tion as outlaws, depriving them of the position of the lawful enemy- justus hostis-who made the vanquished his slaves.2 There is no special text in the Corpus Juris for the punishment of piracy. How- ever, Cicero once said "pirata non est ex perduellium numero defi- nitus, sed communis hostis omnium." This maxim, normally phrased "pirata est hostis generis humani," has definitely done much to sway judges and lawyers generally against the accused, although more lucid minds have suggested that the assertion was made "not in a way to suggest so much a constituent element of the offence as an epithet of opprobrium which the offence deserves." 4 "Hostis humani generis," observed Tindall 1693, "is neither a definition, or as much a description of a pirate, but a rhetorical invective to show the odiousness of that crime."5 Stiel calls it outright nonsense: 6 "nicht mehr als ein Flosk." Finally, one must, of course, con- sider the likelihood of an intense feed-back on human consciousness of the adoption and implementation by the courts of various pieces of national legislation against piracy, however defined. WHERE IS PIRACY TO BE FOUND? Starting with the international agreements, the most important 2. DIGEST 49.15.19.2; 49.15.24; 50.16.118. 3. CICERO, DE OFFIClS, lib. III, 29 (Sabbadini ed. -). 4. Dickinson, Is the Crime of Piracy Obsolete?, 38 HARv. L. REV. 334, 351 (1925) [citing COKE, INST. III, c. 49; 1 WYNNE, LIFE OF JENKINS, 86; MOLLOY, DE JURE MARITIMO, Book I, c. 4, § 1 (6th ed.); I KENT, COMM. 171-172]. 5. 12 How. St. Tr. 1269, at 1271 n. (1693). 6. DER TATBESTAND DER PIRATERIE NACH GELTENDEM VC)LKERRECHT, STAATS- UND VOLKERRECHTLIGHE ABHANDLUNGEN bd IV heft 4 (Leipzig, 1905) 42. 1971] PIRACY: AIR AND SEA 339 place in which the term "piracy" is found today is the Convention on the High Seas, entered into on April 27, 1958 in Geneva. 7 Article 14-22 of that Convention set a general framework for the attempts to suppress piracy. Mr. M. R. Simonnet, Vice President at the Con- ference, called these articles a "sorte de petite convention sur la pi- raterie ins6r~e dans la convention sur la haute mer" and in his view the articles have been allowed a "place disproportionn6e avec l'im- portance du sujet." s The Geneva Convention crowned a number of efforts to arrive at an international conventional regulation of piracy which had been initiated during the days of the League of Nations. Besides these, however, use has also been made of the term "piracy" in less ambitious international agreements. The so-called "anti-pi- racy agreements" which were entered into in Nyon in 1937 are ex- amples.' These accords denounce as "piratical" the acts of sub- marines, aircraft and surface vessels in violation of the rules of naval warfare laid down in the London Naval Treaty of 1930 and the Pro- tocal of November 6, 1936,10 setting forth the rules as to the actions of submarines with regard to merchant ships in time of war. When comparing with the instruments to which reference was made, it should be noted that the term "piracy" was added in 1937 and that the explanations for this addition varied. Lauterpacht felt that the use of the term reflected "the existing law of piracy in relation to an unprecedented situation,"" while Professor David Johnson observes that "the Nyon Conference felt compelled to introduce the word 'pi- racy' somehow in view of its popular use and appeal."' 2 The term "piracy" was also used in a previous, though unratified treaty-the so-called Root Treaty of 1922, sometimes also referred to as the 7. 450 U.N. T.S. 11. 8. LA CONVENTION SUR LA HAUTE MER, 151 (Paris, 1966). 9. International Agreement for Collective Measures Against Piratical Attacks in the Mediterranean by Submarines, signed Sept. 14, 1937, 181 L.N.T.S. 135; and International Agreement for Collective Measures Against Piratical Attacks in the Mediterranean by Surface Vessels and Aircraft, signed Sept. 17, 1937, 181 L.N. T.S. 149. 10. Protocol concerning Rules of Submarine Warfare, 173 L.N.T.S. 353. 11. LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW, 310 n. (Cambridge, 1947). 12. Piracy in Modern International Law, 43 TRANS. GROTIUS Soc. 63, at 84 (1957). 340 DE PAUL LAW REVIEW [Vol. XX:337 Washington Rules.'8 Article HI denounced certain areas of attack upon and the seizure and destruction of merchant ships and sought to provide for their punishment "as if for an act of piracy." It has been noted that "piracy" in these rules did not mean the same thing as in the Nyon Agreements 15 years later.' 4 The preoccupation with the term "piracy" in these international agreements must, of course, be seen in the context of the British struggle for naval power as well as in the older context of the efforts to make European powers accept having their ships visited and searched on the high seas. In the struggle for naval power, Great Britain had slipped considerably 5 by accepting international law obligations through the Paris Declaration of 185616 and the Lon- don Declaration of 1909.17 Attempting to free herself from the fetters thus cast upon her, she had no interest in allowing her ene- mies to make efficient use of the submarine which had turned out to be a commerce destroyer even more dangerous than the privateer once was and the suppression of privateering was part of the quid pro quo which England had gained in hammering out the Paris Declara- tion. The absence of a right to visit and search vessels of other na- tions was much regretted by the British when they wanted to imple- ment the recommendation of the Vienna Peace Congress of 1815 that the slave trade be suppressed.' 8 As no similar obstacles were raised in relation to the suppression of piracy because the pirate of old was classed as an outlaw, it was realized that whatever could be classed as "piracy" meant rights of visit and search for British men of war, hence, the assimilations of slave trading to piracy during the 19th century. To use the notion of "piracy" to achieve results which had nothing to do with classical piracy at all became an established international practice.
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