Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

According to the Harvard Draft Convention on Piracy, all individuals – perpetrators and facilitators alike – must be physically present on the high seas during the commission of the actus reus to be guilty of piracy jure gentium.

The Draft Convention on Piracy was prepared as one of thirteen commentaries on international law drafted by Harvard for the League of Nations Codification Conference of 1930. Although the commentaries were not of much practical use at the conference, the International Law Commission relied heavily on Harvard’s 1932 research when drafting the piracy provisions of the 1958 Geneva Convention on the High Seas, noting at the start of its 1956 draft articles on the law of the sea that:

In its work on the articles concerning piracy, the Commission was greatly assisted by the research carried out at the Harvard Law School, which culminated in a draft convention of nineteen articles with commentary, prepared in 1932 under the direction of Professor Joseph Bingham. In general, the Commission was able to endorse the findings of that research.

The definition of piracy contained in the Geneva Conventions, including its provision on facilitators, was later copied verbatim into UNCLOS where it remained untouched. If the genealogy connecting the 1932 Harvard Draft Convention to UNCLOS is relatively straightforward, the Harvard Convention’s mandates on piracy facilitation are even more explicit.

As a preliminary matter, the language contained in art. 3 of the Harvard convention seems to suggest a high seas requirement for facilitation. “Piracy,” according to art. 3, “is any of the following acts, committed in a place not within the territorial jurisdiction of any state: …any act of instigation or intentional facilitation [of piracy]….”

The explanatory note on art. 3 makes a high seas requirement for facilitators even more plain:

By this clause, instigations and facilitations of piratical acts, previously described in the Article are included in the definition of piracy. Obviously, convenience is served by this drafting device. The act of instigation or facilitation is not subjected to the common jurisdiction unless it takes place outside territorial jurisdiction (emphasis added).

To be clear; it may very well be the case that the drafters of UNCLOS simply did not consider the issue of a high seas requirement for facilitators when copying the 1958 definition of piracy into UNCLOS almost twenty-five years later. There is even a chance that the Harvard Draft Convention’s pronouncements on facilitators was an area where the members of the ILC departed from Harvard’s conclusions, though such a departure would likely have merited mention in the ILC’s commentary.

Nonetheless, the Harvard Draft Convention’s unequivocal statement that facilitators must be physically present on the high seas to commit piracy under the law of nations should color the contemporary debate over pirate negotiators, and its historical connection to UNCLOS merits further investigation. Reasonable minds may disagree as to whether the conception of facilitation for piracy should be extended to acts occurring within a nation’s territory, but if the Harvard Draft Convention is to be a guide, common jurisdiction over facilitators stops at the edge of a state’s territorial waters.