I’ve been meaning to write for some time on the debate caused earlier this year by the ninth circuit of the US Federal Court decision in Institute of Cetacean Research v Sea Shepherd. Somewhat controversially it held that political protesters, if they crossed the line into violent protest, could commit piracy. The point is controversial because piracy is defined under the Geneva Convention on the high seas and the UN Convention on Law of the Sea (UNCLOS) as being an act of violence committed on the high seas by a private vessel against another vessel “for private ends”, a requirement often taken to exclude “political ends”.
The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.
To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. None of the English, French or Latin authorities cited there (as far as I can translate them) contain any equivalent to the words “for private ends”. As far as I have been able to ascertain the words were first used in Joel Prentiss Bishop’s New Commentaries on the Criminal Law (8th ed) of 1892, effectively as a synonym for animo furandi (intention to rob, now generally dismissed as being a necessary element of piracy).
The phrase was next picked up by Ambassador Matsuda in his draft articles and memorandum on piracy for the League of Nations Committee of Experts on International Law in 1926. Matsuda’s intentions in using the phrase were a little difficult to discern. But before we get to what he probably meant by these words, we need to appreciate the problem they were intended to address.
Put simply, there was a conflict in the authorities as to the status of belligerent insurgents in a civil war who committed acts against the shipping of foreign states on the high seas. The question of how to treat the status of insurgent naval activity under the law of piracy was resolved in different ways by different codifiers across the twentieth century. Confusingly, however, they used the same language to achieve subtly different ends.
Matsuda’s League of Nations draft articles excluded from the definition of piracy acts “acts committed with a purely political object”. One might think this created a very simple distinction based on the subjective motivation of the potential pirate. However, if one reads the explanatory memorandum and the League of Nations Committee debates on point a more complex picture emerges. Matsuda favoured an approach based on the objective character of the actions involved and whether they enjoyed State sanction. It became clear in the debates that what he favoured was a narrow exemption from this general rule for certain “purely” political acts. The difficulty is, it was never elaborated either by Matsuda or in debate, precisely what this was intended to mean.
The Harvard Codifiers took a different view in 1932. While they acknowledged that there was historic case law under which insurgents had in some cases been treated as pirates, they thought such cases better reflected a special rule of international law giving jurisdiction to the flag state of vessels attacked by Civil War insurgents unlawfully. A separate rule to this effect was included in their draft article 16. Their use of the words “for private ends” was intended to signal the presence of this special rule covering the situation and exclude such cases from the law of piracy. Importantly, in the Harvard Commentary’s own conception, this exclusion was only intended to apply in limited cases: ‘made on behalf of States, or of recognized belligerent organizations, or of unrecognized revolutionary bands’ (p. 786). The point is that the list did not reflect a general point about political motives, but a closed list of contentious cases.
It is also apparent from the historical context that virtually no consideration was given either to terrorists all political protesters as we now understand the concepts. (The League of Nations thought ‘anarchistic’ motives could be piratical.) The narrow exception to the general rule was only intended to deal with certain military or insurgent activities. Attempts to make arguments based on this historic material in cases like Sea Shepherd involves reasoning by analogy, one which in my opinion goes far beyond the intention of the classifiers.
However, while interesting, the intention of the codifiers is of quite limited relevance to the interpretation of UNCLOS. Such historic material falls well outside the usual range of resources a court or tribunal might have access to under the rules of interpretation found in the Vienna Convention on the Law of Treaties. Some of the commentary on point seems to presume that in the absence of anything else such materials can be treated as equivalent to preparatory works. The point in treaty interpretation, however, is to ascertain the intention of the drafters. In cases where the drafters left no supplementary materials of their own which are directly on point we are left only with the words they agreed upon – the treaty text itself.
Indeed, this very approach has admirably been employed in the recent decision in US v Ali (on aiding and abetting piracy), dismissing the relevance of arguments based on the idea that the Harvard codification project reflects the controlling intention of treaty drafters 50 years later.
Here I would come back to my basic point on this question: in law we usually do not contrast the word ‘private’ with the word ‘political’; the usual dichotomy employed is between ‘private’ and ‘public’. Precisely why having a political motivation of the type held by a protest group or terrorist organisation should exempt one from the law ordinarily applicable to violence on the high seas has never been satisfactorily explained to me.
As a final aside, someone will likely raise against me the Achille Lauro incident and the subsequent Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation as showing that the law of piracy did not apply to terrorist episodes (otherwise, why did we need the SUA Convention?). The most obvious retort is that the laws piracy did not apply to the Achille Lauro because the event occurred entirely aboard one ship. The ‘two ship’ requirement under the law of piracy was fully appreciated by the states that proposed the SUA Convention (Austria, Egypt and Italy) and was among the reasons cited for such a convention being necessary.
*In which, vanity compels me to note, one of my articles was cited.
**This blog post draws loosely on research to be published as: ‘Piracy and terrorism’ in Panos Koutrakos and Achilles Skordas (eds), The Law and Practice of Piracy at Sea: European and International Perspectives (Hart, forthcoming 2014).