Introduction
Although a wide range of conduct is the subject of global condemnation, international lawFootnote 1 only recognises four specific acts as ‘international crimes’: aggression,Footnote 2 crimes against humanity,Footnote 3 genocide,Footnote 4 and war crimes.Footnote 5 Their special status as international crimes is commonly attributed to a criterion of gravity, in that they represent crimes of severe gravity due to their extraordinary scale, nature, impact, and manner of commission.Footnote 6 As is often emphasised, international crimes target large numbers of civilian populations;Footnote 7 involve the large-scale and systematic use of force, typically by states or state-like entities;Footnote 8 involve serious physical and corporeal harm;Footnote 9 are usually committed in the context of ongoing armed conflicts;Footnote 10 result in political consequences that transcend national boundaries;Footnote 11 and constitute harms that injure the normative bonds of humanity as a whole.Footnote 12 This perspective finds institutional expression within the International Criminal Court (ICC), established to prosecute and punish the perpetrators of international crimes and whose founding statute characterises international crimes as ‘unimaginable atrocities that shock the conscience of humanity’.Footnote 13
Rather than the gravity criterion, I have argued elsewhere that the concept of international criminalisation offers a better explanation for why this special category only embraces four specific acts.Footnote 14 Typically viewed by international legal scholars as a legal process centring on the codification of prohibited conduct in an international treaty,Footnote 15 the starting premise of this alternative account is an understanding of international criminalisation as a social process of norm-formation, one involving the emergence of international criminal norms in global politics.Footnote 16 From this perspective, the recognition of certain acts as international crimes reflects how international criminal norms successfully developed in some instances, but not in others. As I have previously shown, the concept of international criminalisation offers an analytically richer and more nuanced explanation for why genocide and aggression were recognised as international crimes.Footnote 17
This article draws on the concept to explain an opposite outcome, instances when criminalisation fails and an act does not gain recognition as an international crime – put differently, a negative instance of international criminalisation. To do so, the article focuses on piracy, acts that threaten maritime security and whose repression is governed by the United Nations Convention on the Law of the Sea (UNCLOS).Footnote 18 Piracy offers an interesting case to explore the dynamics of international criminalisation as it problematises a commonly accepted dichotomy that underpins contemporary international criminal justice, the distinction between ‘international crimes’ and ‘transnational crimes’.
Although central to international criminal law, ‘international crimes’Footnote 19 is a concept marked by definitional disagreement,Footnote 20 where the debate centres on exactly what makes a crime an international one.Footnote 21 In one view, international crimes are offences whose material elements are defined by international law, be it custom or treaty.Footnote 22 In another view, international crimes are acts that international law obligates all states to criminalise and punish within their domestic legal orders.Footnote 23 From yet another perspective, what makes a crime an international one is its triability before international criminal tribunals.Footnote 24 It has also been suggested that a crime is international if it violates supranational values deemed fundamental to the international community, such as the peace, security, and well-being of the world.Footnote 25 Finally, another argument emphasises how an international crime gives rise to universal jurisdiction: they can be prosecuted and punished by any state, regardless of where the crime was committed and irrespective of the nationality of the perpetrator.Footnote 26
In contrast, ‘transnational crimes’ refer to a residuum of other international offences excluded from the ICC’s jurisdiction, such as slave trading, drug trafficking, terrorism, money laundering, and cybercrime.Footnote 27 Committed by non-state actors for private ends, transnational crimes result in trans-boundary effects, and to provide for their repression, states have concluded ‘suppression conventions’.Footnote 28 These treaties oblige states to criminalise certain offences within their domestic legal orders, and also require them to enforce their prosecution and punishment in terms of their domestic laws.Footnote 29 Although established through treaty obligations, transnational crimes constitute violations of domestic criminal law that are punishable through domestic courts.Footnote 30 The authority to prosecute, as well as the criminal liability for, transnational crimes are therefore based upon the domestic criminal laws of individual states, as opposed to international law.
The distinction between these two criminal categories is so well entrenched that the two are treated as distinct fields of law and study – respectively, international criminal law and transnational criminal law.Footnote 31 However, more critical views of this accepted doctrine have drawn attention to the inconsistencies and ambiguities that this dichotomy produces. For instance, it has been argued that because these categories ‘lack convincing and coherent definitions and are as a result somewhat protean’, there is ‘no doctrinally sound distinction to be made between the “core” or “big four” international crimes and transnational [crimes]’.Footnote 32 Characterising the ‘rigid dichotomization’ between these two categories as ‘doctrinally weak’, ‘jurisprudentially suspicious’, and ‘criminologically dubious’, another commentator argues the differences between the two are simply of ‘nuance rather than nature’.Footnote 33 Central to these critiques is the case of ‘liminal crimes’ – crimes that sit at the boundary and can be classed as either an international or transnational crime, depending on what is taken as the defining feature of these two concepts.Footnote 34 Piracy is often cited as an example of such a ‘crime at the boundary’, with some going as far as arguing that piracy is ‘emblematic of the disputed boundaries between international and transnational crimes’.Footnote 35
Piracy is conventionally characterised as an international crime and is furthermore portrayed as the first and oldest international crime.Footnote 36 For adherents of this view, piracy is an international crime due to its historical association with universal jurisdiction. As is often claimed, piracy is the only offence that has been subject to this legal principle for over hundreds of years, since at least the seventeenth century.Footnote 37 Universal jurisdiction has been required in piracy’s case because pirates constitute hostes humani generis,Footnote 38 a Roman term that translates into ‘enemies of mankind’.Footnote 39 Labelled as ‘international outlaws’ and ‘universal villains’ in more modern descriptions, pirates disrupted the smooth functioning of international commerce, the freedom of navigation on the high seas, and the safety of international shipping.Footnote 40 By committing heinous and indiscriminate acts of violence on the high seas,Footnote 41 pirates also placed themselves outside the moral boundaries of the international order, thereby rendering themselves as the ‘anarchical villains to civilized societies’.Footnote 42 As Simpson explains,
[Pirates] disrupted international commerce, they were an irritant to Empire, they acted in pursuit of disqualified ends (greed, anarchy), they were res nullius (having allegiance to no state) and they behaved abominably, showing no regard at all for the laws of war or the principles of maritime civility or the ius ad bellum. Footnote 43
However, this orthodox view has been criticised for amounting to a ‘misstatement that has come into usage from convenience and not legal accuracy’.Footnote 44 Challenging the long-standing assumption that piracy has been subject to universal jurisdiction as a ‘legal fiction’Footnote 45 and a ‘romanticized myth’,Footnote 46 revisionist accounts argue this legal principle never served as settled, guiding doctrine on the law of piracy.Footnote 47 As these studies have shown, very few criminal prosecutions on the basis of universal jurisdiction can be found in the historical record.Footnote 48 Furthermore, far from having been condemned throughout history, piracy was not only tolerated but also viewed as a legitimate practice by major maritime powers in the early European state system.Footnote 49 It is also argued that UNCLOS functions principally as a suppression treaty: rather than establishing a substantive offence of piracy under international law, it simply provides a broad regulative framework for states to take individual action against pirates within their domestic legal orders.Footnote 50 Piracy, then, is better conceived as a transnational crime,Footnote 51 with some suggesting it represents the ‘first historical example of a transnational crime’Footnote 52 and the ‘prototypical transnational crime’.Footnote 53
At the heart of these contested views on piracy is a critical issue that the existing literature has ‘generally brushed aside’ but that this article takes up, namely, the question of ‘how [international] crimes have become [international] crimes, and why’.Footnote 54
To do so, the article draws upon an analytical framework on the process of international criminalisation, which is directed at analysing how and why some, but not all, atrocities have been recognised as international crimes in global politics. As this article will show, the concept of international criminalisation opens up space to subject piracy to a novel line of inquiry, one that is focused on the underexplored question of whether this process took place throughout piracy’s historical development. In doing so, it offers a novel perspective on the question of whether piracy amounts to an international or transnational crime.
The article begins with an overview of piracy in global politics.Footnote 55 It will then outline its conceptualisation of international criminalisation and also clarify the article’s precise focus. Thereafter, it undertakes a historical analysis of piracy and international criminalisation, which will focus on four particular historical periods across the twentieth century during which piracy was the subject of debates between legal diplomats: the League of Nations (1924–7); the Harvard Research in International Law (1931–2); the International Law Commission (ILC) (1949–56); and the General Assembly (GA) of the United Nations (UN) (1958). As this analysis will show, a critical step for the establishment of an international crime – the development of international criminal norm – failed to occur in piracy’s case. Specifically, an international social consensus that piracy deserves the status of an international crime never arose amongst legal diplomats across these historical periods. Contrary to prevailing views, therefore, piracy is not an international crime. In its concluding section, the article offers some reflections on its contribution to wider discussions on the politics of international criminal justice.
Piracy in global politics
Etymologically derived from the Greek word peirates (‘one who attacks’), ‘piracy’ refers to illegal depredation at sea.Footnote 56 Typically committed by non-state actors, piracy is commonly characterised as a form of private violence, making it distinguishable from state-sanctioned violence.Footnote 57 In this regard, piracy often contrasted with privateering: as a wartime form of maritime predation legally authorised by sovereigns through letters of marque, privateers engaged in legal maritime violence, whereas pirates operated without the permission or sanction of a recognised sovereign.Footnote 58 Piracy, therefore, constitutes illegal maritime violence.Footnote 59 Frequently represented as outlaws operating beyond society, pirates have also been associated with excessive violence, cruelty, debauchery, lawlessness, greed, anarchy, political subversion, resistance, and protest.Footnote 60 Historically bound up with universal enmity, pirates have been regarded as a systemic enemy of the entire international system of states, often expressed by the epithet ‘enemies of mankind’.Footnote 61 A shared interest in its eradication thus united all states to cooperate to suppress piracy, facilitated by a collective right to prosecute and punish pirates.Footnote 62 As the first and original enemy of mankind, the figure of the pirate has a foundational place in international law, where it is seen as having inaugurated the principle of universal jurisdiction.Footnote 63
This conceptualisation of piracy is also reflected in legal definition within UNCLOS. Established to create a ‘legal order for [the] seas and oceans’,Footnote 64 UNCLOS has stratified bodies of water into different juridical categories: territorial seas,Footnote 65 contiguous zones,Footnote 66 exclusive economic zones,Footnote 67 and the high seas.Footnote 68 Contained within a section dedicated to the high seas, UNCLOS defines piracy as:
a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State
b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
c) any other act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).Footnote 69
According to this definition, piracy requires an illegal act of violence or depredation.Footnote 70 Secondly, piracy can only occur in specific juridical bodies of water: the high seas and a state’s exclusive economic zone.Footnote 71 Thirdly, piracy requires two vessels, which operates to exclude acts of mutiny or revolt from piracy’s scope.Footnote 72 Fourthly, piracy can only be committed by the crew or passengers of a private ship; public vessels, such as warships, are therefore excluded from piracy’s scope.Footnote 73 This implies piracy is ‘an act of private violence’ that can only be committed by non-state actors,Footnote 74 which is reinforced by its final element: piracy is committed for private ends, such as private financial gains or profits.Footnote 75 Politically motivated acts, such as maritime terrorism or violent ecological activism at sea, do not therefore constitute piracy.Footnote 76
As UNCLOS further specifies, piracy constitutes one of the few exceptions to the general principles that govern the high seas, namely: freedom of the seas, in terms of which all states have the right to navigate the high seas,Footnote 77 and flag-state jurisdiction, which permits states to exercise jurisdiction only over ships on the high seas flying their flag.Footnote 78 In this regard, UNCLOS establishes a legal duty on the part of states to ‘cooperate to the fullest possible extent in the repression of piracy’.Footnote 79 To facilitate this, UNCLOS permits any state to seize a pirate ship, with the state carrying out the seizure being permitted to decide on the penalties to be imposed.Footnote 80 It also gives states the right of hot pursuit, which allows them to pursue onto the high seas a foreign vessel that has violated its law and regulations.Footnote 81
These legal provisions obscure, however, the complexity that surrounds the concept of piracy and its significance in global politics. As more critical works on the subject have highlighted, piracy has historically assumed different forms, and since there were many ways to be a pirate, this complicated efforts to craft a universal definition of piracy, especially during the early modern period when international law was in its embryonic stage.Footnote 82 Rather, the term ‘piracy’ during this period described diverse acts, which were intrinsically tied and shaped by specific maritime contexts, traditions, and events.Footnote 83 Moreover, pirates were driven by diverse motivations, ranging from opportunism, vengeance, resistance, and economic necessity.Footnote 84 Surges in piracy across history were also influenced by wider structural conditions, such as warfare and the political economy of violence,Footnote 85 economic systems dependent on maritime trade,Footnote 86 shifts and transitions in global economic systems,Footnote 87 and imperialism.Footnote 88 Far from being a universal concept, piracy’s meaning varied in different historical, geographical, cultural, and linguistic contexts.Footnote 89 Critically, its universalisation came at the height of European imperial maritime expansion, when it was fashioned into a global and homogenous phenomenon by European states to serve particular political ends.Footnote 90
Newer narratives on piracy’s history in global politics have challenged the dominant conceptualisation outlined above in four central ways. Firstly, they have contested the distinction that is commonly drawn between piracy and state power, particularly by showing how private actors have not been the only ones to engage in acts of piracy. Owing to its centrality for state-building processes and the accumulation of state wealth and geopolitical power, sovereign authorities – whether we look to ancient Greece, medieval Scandinavia, Elizabethan England, pre-colonial Southeast Asia, or the Chinese coasts in late imperial time – have historically relied upon piracy and other forms of maritime predation to further strategic interests.Footnote 91 To elaborate further on one example, maritime violence was a key feature of European overseas expansion across the sixteenth to the early twentieth centuries, where it was employed by European sovereigns to further commercial and political interests against their European competitors, as well as to force their will upon non-European sovereigns.Footnote 92 In the context of inter-imperial rivalries, piracy was therefore intertwined with contested sovereignty claims over newly discovered oceans and overseas lands. Accusations of piracy thus represented a useful tool for the European powers to assert their respective maritime spheres of influence and sovereignty claims. During this period, piracy was also structurally connected to the political-economic logic of European mercantilist empires of the time.Footnote 93 In the context of an economic system where war and maritime violence were integral components of wealth creation, circulation, and accumulation, piracy was a predictable consequence of European mercantilism, and alongside privateering, it formed a continuum of predatory activity that was part and parcel of European imperial rivalry.Footnote 94
Secondly, for all the rhetoric of enemies of mankind, states have only exerted occasional control over pirates.Footnote 95 The formal distinction between piracy and privateering in early modern Europe was often blurred in practice, effectively contributing to circumstances where one nation’s pirates represented another nation’s privateers.Footnote 96 Along with unsettled definitions of piracy and the diverse practices of maritime predation, mariners also adopted creative strategies of ‘legal posturing’ to defend their actions and themselves from prosecution.Footnote 97 Moreover, when states did assert effective control over pirates, this was informed by wider structural dynamics, such as when Britain led a global campaign against piracy at the start of the eighteenth century that resulted in the suppression of European piracy by 1730.Footnote 98 However, this was not divorced from wider political-economic trends, including Britain’s rise as the global maritime hegemon and the development of a global capitalist economy.Footnote 99 Underwritten by British naval and financial hegemony, piracy was a casualty of the shift from mercantilism to capitalism.Footnote 100 As free trade and commerce emerged as the preferred mechanism of wealth creation, the safe passage of inter-imperial trade became a strategic priority.Footnote 101 Piracy therefore became increasingly seen as a threat to Atlantic trade, driving states to take on the role of protecting overseas commercial interests through greater policing of the seas.Footnote 102
Thirdly, for most of its long history, including the centuries when piracy presented the gravest danger to global commerce, pirates were consistently treated as criminals under municipal law, not the law of nations.Footnote 103 The principle of universal jurisdiction, therefore, did not amount to settled or guiding doctrine on the law of piracy.Footnote 104 For instance, actions against pirates during Britain’s global campaign against piracy flowed not from the dictates of emerging international law but instead from a combination of gunboat diplomacy, bilateral treaties, municipal law, and diplomatic negotiation.Footnote 105 As formulated by the founding figures of international law, such as Gentili and Grotius, universal jurisdiction functioned more as a legal cover to legitimise imperial projects.Footnote 106 By asserting the existence and universal right to punish pirates, universal jurisdiction provided European sovereigns with a legal basis to extend jurisdictional claims over ocean space, thus enabling colliding maritime powers to support self-interested positions.Footnote 107 From the second half of the eighteenth century, it also enabled European imperial agents to identify non-European polities and sovereigns – for example in North Africa, the Persian Gulf, and the Malay Archipelago – as pirates, thereby facilitating the extension of European imperial dominance in extra-European contexts.Footnote 108
Finally, recent studies have shown that pirates were social actors with considerable international agency in global politics. Far from being peripheral, pirates were central to the development of international law, sovereignty, and war,Footnote 109 and also influenced the structuring of global legal interactions.Footnote 110 As Lauren Benton has shown, the circulating legal strategies of pirates in the late seventeenth and early eighteenth centuries were instrumental in helping to define and shape legal practices on the seas, as well as maritime law.Footnote 111 Focusing on private seaborne violence in the Mediterranean from the sixteenth to the nineteenth century, Alejandro Colás posits a dialectical relationship between barbarism and civilisation, arguing that ‘barbaric’ or illicit practices such as piracy and privateering were crucial in the construction of a standard of civilisation across the western and central Mediterranean.Footnote 112 Repositioning pirates as full participants in international legal relations also exposes the limitations of standard accounts of international law, which attribute its origins to the development of shared principles amongst European nations that were then extended in time to the non-European world.Footnote 113 Here, Michael Kempe has argued that the development of European public law in the seventeenth century was not only driven by processes of ‘inward integration’, such as the development of shared universals.Footnote 114 Rather, processes of ‘outward delimitation’, which operated to promote integration by exclusion, were equally important, and as the common enemy of all, pirates thus operated as a figure of ‘negative integration’ in the development of European public international law.Footnote 115
Piracy and international criminalisation
Drawing on my earlier work, international criminalisation is defined here as ‘the process by which particular acts come to be recognized, following diplomatic negotiations between social actors, as international criminal norms within international society, and are thereby accorded with a formal legal existence under international law as an international crime’.Footnote 116 This definition usefully clarifies what the process of international criminalisation entails, as well as how it unfolds, namely: a two-stage process involving the emergence of an international criminal norm and, thereafter, the translation of this norm into an international legal proscription.Footnote 117 As a unique type of norm in global politics, an international criminal norm refers to ‘collectively held shared understandings in international society that certain acts constitute exceptionally serious forms of globally significant harm’.Footnote 118 For an international criminal norm to develop, international consensus on two particular issues are required: firstly, on the status of an act, namely, that it deserves to be specifically recognised as an international crime, as opposed to merely an international wrong; and secondly, on the particular form that the act will assume as an international crime, namely, its defining features and elements.Footnote 119
The development of an international criminal norm constitutes a social process in three key respects. First, it requires international social consensus on international criminality, namely: the development of shared understandings amongst social actors that an act constitutes criminal, as opposed to merely unlawful or wrongful, behaviour and therefore deserves the special label of an international crime.Footnote 120 This, in turn, implies the presence and participation of social actors, which may include diplomatic envoys, legal experts and advisors, transnational activist networks, and global social movements.Footnote 121 Finally, the international social consensus that develops amongst social actors arises through a distinctive social process centring on international diplomatic negotiations, which take place within international social spaces, such as within the organs of international institutions, multilateral conferences, and international summits.Footnote 122 It is only if an international criminal norm successfully develops that the process of international criminalisation proceeds to the second stage, which involves giving the norm formal legal existence through international legal proscription.Footnote 123
Based on these insights, the analysis below is specifically directed at exploring whether an international criminal norm against piracy arose across the twentieth century. Through a textual analysis of international archival materials, my aim is to uncover whether international agreement on piracy’s status and form as an international crime took hold across four critical stages of its historical development in the twentieth century. In doing so, I have furthermore limited my focus of archival materials to primary documents emanating from international juridical spaces, with the related aim of exploring the role of legal diplomats and legal jurists within piracy’s historical development. Far from implying these are the only relevant social actors worthy of analytical attention, my focus on legal diplomats is informed by Mikkel Jarle Christensen’s notion of ‘justice sites’,Footnote 124 in that I see the realm of international legal diplomacy as a locality in which the organised and social labour behind the process of international criminalisation occurs. Moreover, as their activities have often been obscured in international legal scholarship,Footnote 125 my focus on legal diplomats is also aimed at demonstrating how they constitute a grouping of professional elites with the ability to influence the process of international criminalisation.Footnote 126
Conceiving of international criminalisation as a two-stage process of norm-formation offers a more nuanced understanding of international crimes – a concept whose definition, it will be recalled, is the subject of debate amongst international legal scholars. Although international legal scholars disagree on what the defining features of international crimes are, there is nevertheless agreement that its essence centres on qualities that are fundamentally legal in nature, such as individual criminal responsibility or universal jurisdiction. However, when the process by which international crimes are established is understood as one involving norm-formation, then they do not simply represent legal constructs but also social constructs. This is not to dismiss their legal qualities but rather to suggest that the social attributes of international crimes are ontologically prior to their legal qualities. In this article, therefore, international crimes are defined as acts that social actors in international society recognise as having the status of wrongful acts of an international criminal nature, and whose definitional elements constitute collective agreement on the particular form it ought to legally assume.
A focus on international criminalisation also raises questions that international legal scholars have not raised, but that the discipline of International Relations (IR) is well placed to answer. This includes an important ‘why’ question, namely, why does the process of international criminalisation occur in some instances, but not others? In earlier work, I attributed this to several ‘drivers of international criminalization’, including the existence of a ‘political shock’ and ‘political contestation’ amongst ‘agents of criminalization’ over the status and form of acts that have emerged as candidates for international criminalisation.Footnote 127 The outcome of this contestation depends, in turn, on: the ‘degree of compatibility with existing norms’, which attends to the process of norm-formation; and the status of the agents of criminalisation, which addresses the role of material factors within the overall process, such as power and interests.Footnote 128
Due to space constraints, this article does not undertake a detailed examination of the role these factors played in piracy’s case. It is acknowledged that a fuller exploration of the ‘why’ question, as has been undertaken in other studies of international criminalisation, is critical for illuminating how broader structural forces – such as power asymmetries and hierarchies in global politics – played a role in piracy’s case, and that this omission will necessarily mean that the article’s contribution is somewhat modest. However, as there have been no studies on piracy and international criminalisation to date, this article limits its focus to the prior question of whether an international criminal norm against piracy developed in global politics. This is justified on the grounds that this question merits sustained attention in its own right, as further lines of enquiry on the unexplored topic of piracy and international criminalisation depend on the answer to this preliminary one.
League of Nations (1924–7)
On 22 September 1924,Footnote 129 a Committee of Experts for the Progressive Codification in International Law (Committee of Experts)Footnote 130 was established to identify a list of international issues that might be suitable for regulation through international agreement.Footnote 131 As piracy was included on this list,Footnote 132 a subcommittee consisting of two legal experts – Ambassador Matsuda (Japanese Ambassador to Rome) and Dr Wang Chung-Hui (Deputy Judge of the Permanent Court of International Justice) – was appointed to examine whether an international convention on piracy could be concluded.Footnote 133
This was answered in the affirmative and a draft convention on piracy (Draft Proposal for the Suppression of Piracy) was included in the subcommittee’s report (the Matsuda Report).Footnote 134 Noting how legal scholars of the time held different opinions on what piracy constitutes, the report stated that it would be desirable to ‘adopt a clear definition of piracy [that would be] applicable to all States in virtue of international law’.Footnote 135 To that end, it suggested piracy be understood as ‘sailing the seas for private ends without authorization from the Government of any state with the object of committing depredations upon property or acts of violence against persons’.Footnote 136 The report also enumerated what it regarded as piracy’s key features: it can only be committed by a private vessel and for private ends; piratical attacks are directed against the security of international maritime commerce on the high seas and, as such, are harmful to the international community of states; and finally, pirates are enemies of the human race and can be seized, captured, and arrested by any state.Footnote 137
As official repliesFootnote 138 to the Matsuda Report indicate, the majority of legal diplomats were in favour of an international convention on piracy.Footnote 139 While a minority did not see the international regulation of piracy as especially important or urgent, they nevertheless did not formally object to an international convention.Footnote 140 Nine legal diplomats broadly supported an international convention but proposed minor reservations,Footnote 141 such as the suggestion an international conference be convened to formulate rules on piracy and stating their right to observations ahead of the conclusion of any agreement.Footnote 142
Two legal diplomats were opposed to an international convention on piracy, one of whom argued the regulation of piracy by international agreement was of little importance as piracy was nearly extinct.Footnote 143 In the view of the other, an international convention on piracy was undesirable because specific conditions required for its international regulation – such as each state requiring powers of supervision and jurisdiction over ships – were not present.Footnote 144 Finally, six other legal diplomats did not submit substantive opinions on piracy, with many stating piracy was either of little or indirect importance.Footnote 145
When the matter was taken up by the Council of the League of Nations, the minority view prevailed. After studying the Matsuda Report, it concluded the following:
It is perhaps doubtful whether the question of Piracy is of sufficient real interest in the present state of the world to justify its inclusion in the programme of the conference, if the scope of the conference ought to be cut down. The subject is in any case not one of vital interest for every State, or one the treatment of which can be regarded as in any way urgent, and the replies of certain Governments with regard to it indicate that there are difficulties in the way of concluding a universal agreement.Footnote 146
It therefore recommended piracy be excluded from future efforts directed at the codification of international law, which effectively brought an end to the brief concern piracy received within the League of Nations.
These developments underscore how international agreement on status and form – the two elements required for the first stage of international criminalisation – were absent in piracy’s case. Firstly, there was no consensus that piracy deserved the status of an international crime, and the legal diplomats involved in these discussions had no desire to criminalise piracy under international law. Piracy was neither designated nor referred to as an international crime during these deliberations but rather was principally viewed as a threat to international commerce. Moreover, although the majority of legal diplomats favoured an international convention on piracy, this was not accompanied by the additional view that it ought also to be designated as an international crime in such a future treaty. Indeed, none of the official government replies to the Matsuda Report employed the term ‘international crime’ when referring to piracy. In fact, even the word ‘crime’ was infrequently associated with piracy, which was only used in two instances.Footnote 147 While this may of course reflect how the term ‘international crime’ had not yet entered into common usage at this time, a close analysis of these government replies also indicates that the cognate term ‘offence’ was only used in one instance.Footnote 148 Secondly, there was also no consensus on piracy’s form but rather, as the Matsuda Report indicates, an appreciation that piracy lacked an authoritative definition under international law at the time. Crucially, the fact that a proposed definition was included in the Matsuda Report centralises how at this point in time, there was no settled international agreement on piracy’s essential elements.
Across the 1920s, therefore, there was no international appetite for criminalising piracy under international law. Rather, international interest in piracy arose in connection with broader efforts aimed at the codification of international law. To meet ‘the legislative needs of international relations’, the League of Nations had overseen the conclusion of international treaties on various issues of international concern, such as communications and transit, custom formalities, international labour legislation, the protection of minorities, and the suppression of the trafficking in women and children.Footnote 149 Its focus on, and engagement with, piracy was therefore part of a wider objective of legally regulating issues of international concern, as opposed to international criminalisation.
The Harvard Research in International Law (1931–2)
In November 1927, the Harvard Law School established a research committee – the Harvard Research in International Law (Harvard Research) – to study various issues of international law, including piracy.Footnote 150 Led by Joseph Bingham, a legal expert at Stanford University, a group of sixteen international legal jurists investigated piracy over the course of nine sessions between 1930 and 1931.Footnote 151 At the end of their study, the research collective issued the 1932 Harvard Draft Convention on Piracy (Harvard Draft), which included a draft international treaty and a detailed analysis of legal doctrine and case law on piracy at the time.Footnote 152 Two particular aspects of the Harvard Draft are especially significant for the analysis here.
Firstly, the Harvard Draft disputed piracy’s traditional characterisation as an offence against the law of nations and instead designated it as an offence with ‘extraordinary jurisdiction’ under international law.Footnote 153 In doing so, it took issue with prevailing characterisations of piracy as an ‘international law crime’ and pirates as ‘cosmopolitan criminals’ and ‘enemies of the human race’.Footnote 154 This view was reflective of the historical circumstances of the time, in that a fully-fledged system of international criminal justice was not yet in existence. As the Harvard Draft argued, piracy cannot be regarded as a crime under the law of nations because there was neither an ‘international agency to capture’ nor an ‘international tribunal to punish’ pirates.Footnote 155 Rather, by permitting any state to seize and prosecute pirates, international law simply provided states with common jurisdiction over piracy.Footnote 156 In instances where pirates were seized, prosecuted, and punished, this was due to states’ voluntary action, as opposed to an obligation in terms of a legal duty under international law.Footnote 157 Piracy, therefore, was characterised in the Harvard Draft as an offence that is subject to a ‘special ground of state jurisdiction’.Footnote 158 And concerning pirates, it argued the much-repeated idea that they are hostis humani generis is simply an ‘epithet’ that expresses ‘verbal condemnation’ of the ‘vituperative quality’ of the conduct of pirates.Footnote 159
Secondly, the Harvard Draft also noted there was no ‘authoritative definition’ but rather a ‘chaos of expert opinion’ on what piracy denotes.Footnote 160 This explains why the lengthiest section of the Harvard Draft was its review of contending definitions of piracy in existence at the time. Across more than fifty pages, it surveyed proposed definitions of piracy within legal treatises and case law, before formulating their own. As we will see, the Harvard Draft’s definition would later influence subsequent efforts to define piracy within the UN, and as such, it would be useful to introduce it at this juncture:
any act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends without bona fide purpose of asserting a claim of right, provided that the act is connected with an attack on or from the sea or in or from the air.Footnote 161
Praised for having provided an ‘excellent snapshot of the concept of piracy at that time’Footnote 162 and for ‘summarizing the doctrinal debate on piracy as it stood in 1932’,Footnote 163 the Harvard Draft constitutes valuable evidence for how piracy was regarded in the 1930s. Importantly, it demonstrates there was no significant change to the way piracy was conceived in the previous decade. No new consensus that piracy ought to be conceived as an international crime developed, and indeed, the fact that the Harvard Draft challenged piracy’s traditional characterisation as an international crime indicates the existence of contestation on this orthodox view. Equally, piracy’s form continued to be marked by a lack of international agreement. Although a definition was proposed in the Harvard Draft, broader international consensus on its definition was nevertheless still lacking at this time. This goes some way towards explaining why the desire to codify piracy within an international convention represented a continuing concern on the part of legal experts within the League of Nations and the Harvard Research group. Put differently, an international treaty on piracy was deemed necessary in order to codify an international legal definition for piracy. However, it must be emphasised that this concern was not accompanied, in either the 1920s or the 1930s, by an additional desire to criminalise piracy under international law. As with the 1920s, therefore, the absence of international agreement on piracy’s status and form as an international crime prevented an international criminal norm against piracy from emerging across the 1930s.
International Law Commission (1949 to 1956)
Piracy was the subject of international discussions within the International Law Commission (ILC)Footnote 164 after the Second World War, which arose in connection with its work on the codification of the high seas between 1950 and 1956. At the start of these proceedings, piracy was referred to very occasionallyFootnote 165 and only emerged as a substantive topic of discussion in 1954, following the issuing of the Sixth Report on the Regime of the High Seas by Mr J. P. A. François (Special Rapporteur for the Regime of the High Seas).Footnote 166 This report included a draft international convention on the high seas, which contained six articles on piracy. This included a proposed definition of piracy, as well as provisions relating to the seizure of pirate ships on the high seas.Footnote 167 These articles had been taken verbatim from the Harvard Draft, which the Special Rapporteur regarded as a useful basis for the ILC’s discussions on the subject.Footnote 168
The Special Rapporteur’s report prompted lively discussions on piracy amongst the ILC members. Following sustained debate on alternative definitions,Footnote 169 a definition, as well as the formulation of eight articles on piracy, was agreed upon. A close review of these debates demonstrates that discussion on piracy’s criminality was conspicuously absent. Although several ILC members depicted piracy as an international crime – for instance, Mr Gilberto Amado (Brazil) described piracy as a ‘crime against the jus gentium’Footnote 170 and Mr Jaroslav Zourek (Czechoslovakia) characterised piracy as an ‘international crime under customary international law’Footnote 171 – these statements failed to provoke responses from other ILC members. As the record of these proceedings show, the principal issue that preoccupied the ILC members centred on piracy’s definition.Footnote 172
Along with the draft treaty on the high seas, the eight articles on piracyFootnote 173 were forwarded to the United Nations (UN) General Assembly (GA) for government comments. Only seven governments specifically responded to the piracy articles, but crucially, none of these official comments drastically altered their substantive content.Footnote 174 Rather, only minor textual improvements were proposed, which the Special Rapporteur considered when making his final revisions.Footnote 175 Completed in 1956, the final draftFootnote 176 of the treaty on the high seas constitutes an important marker in piracy’s historical development for two central reasons.
Firstly, it expressed international consensus on piracy’s definition under international law, which was defined in Article 39 as an illegal act of violence committed for private ends on the high seas.Footnote 177 Although the structure and wording of this definition differed to that proposed in the Harvard Draft, it was nevertheless similar in its substance. In contrast with previous decades, therefore, piracy finally acquired a settled definition that was underpinned by diplomatic agreement. However, it must be stressed that defining piracy was not the ILC's overriding objective. Rather, this emerged as an inadvertent enterprise and was derivative of its broader work on the codification of international rules on the high seas. And indeed, debates over piracy’s definition within the ILC constituted a relatively small portion of its overall discussions. Moreover, the ILC formulated piracy’s definition relatively swiftly after some – though not protracted – debate.
Secondly, the draft treaty underscored how piracy was primarily regarded as an act requiring global suppression, as opposed to one that deserves the status of an international crime. This is clear from Article 38, which provided for piracy’s repression: ‘All States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State’.Footnote 178 To facilitate this, Article 43 provided all states with the right to seize pirate ships on the high seas – in other words, universal jurisdiction over piracy:
On the high seas or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.Footnote 179
Importantly, then, the articles on piracy within this draft treaty brought no significant changes to piracy’s status during this period. Debates on piracy’s status were glaringly absent from the ILC’s discussions and there were virtually no debates, in particular, on whether piracy ought to be elevated to an international crime. All of this suggests that piracy was not considered as a candidate for international crime and a possible change was neither envisaged nor contemplated. Piracy was not, therefore, regarded by legal diplomats as an international crime; rather, it was simply perceived as an act whose control and regulation in global politics required concerted global cooperation. This, in turn, specifically required reaching agreement on piracy’s definition, as well as provisions relating to its global suppression. For these reasons, an international criminal norm against piracy also failed to develop across the 1950s.
General Assembly of the United Nations (1958)
Upon receiving the ILC’s draft international convention on the high seas, the GA convened an international conference – the United Nations Conference on the Law of the Sea – to negotiate an international treaty on the regulation of the oceans and the seas.Footnote 180 Held from 24 February until 27 April 1958, five separate committeesFootnote 181 were established to deal with different clusters of issues during the diplomatic conference, with piracy falling under the purview of the Second Committee. Over the course of two meetings, piracy was debated within the Second Committee. Here, only one substantive matter arose, namely: whether piracy deserved to be included within an international treaty on the high seas.
During this debate, a small number of legal diplomats held the view that piracy should be altogether excluded from the treaty, as it ‘no longer constituted a general problem’.Footnote 182 As one legal diplomat put it, the ‘notion of piracy put forward in [the ILC’s draft articles] was an obsolete one’ and it was therefore ‘out of all proportion for the […] draft to contain eight articles dealing with an eighteenth-century concept’.Footnote 183 In a similar vein, another legal expert argued the ILC had been ‘mistaken in devoting so many articles to piracy [as] it no longer constituted a very real problem’.Footnote 184 However, when a proposal to remove the piracy articles from the treaty was put to a vote, it was rejected by a majority.Footnote 185 Here, it was argued by one legal diplomat that ‘any comprehensive convention on the law of the sea must deal with the important issue of piracy’.Footnote 186 Interestingly, though, the records of these debates demonstrate that this vote brought the matter to a definitive close, and no further views as to whether or not piracy ought to be included in the final convention were subsequently expressed or debated.
Thereafter, the Second Committee’s remaining discussions revolved around textual refinements to the piracy articles.Footnote 187 As these were minor wording improvements, they were swiftly dealt with without controversy through a series of votes, and eight final articles on piracy were eventually adopted.Footnote 188 At the plenary meeting of the conference, these articles received final approval by states, where the majority of state representatives voted in favour of adopting all eight articles without any further debate.Footnote 189
Following the adoption of these eight articles, piracy was codified in the Convention on the High Seas.Footnote 190 This international treaty provided for the repression of piracy, its international legal definition, and the principle of universal jurisdiction.Footnote 191 This phase of piracy’s historical development resulted in it finally acquiring an international legal definition. However, piracy continued to be perceived as an act requiring global suppression, as opposed to one that ought to be criminalised under international law and recognised as an international crime. This is particularly evident from the way no pronouncements, statements, or even passing remarks were made as to piracy’s criminality during discussions held within the General Assembly during this phase. In 1982, this international treaty was superseded by UNCLOS, but the articles on piracy in the earlier treaty were simply imported into UNCLOS with very minor changes. Under current international law, therefore, piracy is presently codified within Articles 100 to 107 of UNCLOS.
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To summarise, the principal concern that preoccupied legal diplomats across the twentieth century centred on the lack of an international legal definition of piracy, as well as the codification of formal legal provisions on piracy under international law. Critically, debates on these two issues in multiple legal fora proceeded without any reference to, or engagement with, the issue of piracy’s criminality. Not only were debates on piracy’s existing connection with the notion of an international crime absent but also missing were discussions of its possible association in the future. Moreover, while legal diplomats agreed piracy was subject to special jurisdictional rules under international law, this was never regarded as an index of its criminality. It is telling, furthermore, that piracy was never characterised in criminal terms but rather as a threat to international maritime commerce. What is also evident is that deliberations on piracy’s definition were derivative of broader efforts aimed at the codification of international law, particularly the international law of the sea. In other words, the debates and the eventual agreement on piracy’s definition were aimed at bringing greater legal regulation of the oceans and high seas, as opposed to specifying its form as an international crime.
The above analysis above illuminates a critical factor that existing debates on the nature of piracy’s criminality in global politics have overlooked but this article suggests are relevant. When international crimes are understood as acts that have successfully undergone the two-stage process of international criminalisation, the presence or absence of the principle of universal jurisdiction, a key point of contention in existing debates on whether piracy is an international or transnational crime, is not an especially productive line of enquiry. The same can be said about the gravity criterion, which features implicitly in views that endorse piracy as an international crime, particularly the argument that pirates represent ‘enemies of all mankind’. What matters more is the concept of international criminalisation, which refocuses analytical attention to the more critical question of whether the process of international criminalisation successfully took place in piracy’s case. As the analysis here shows, consensus that it deserves the special status as an international crime never developed amongst the legal diplomats and jurists involved in international discussions on piracy. Consequently, an international criminal norm against piracy, whose emergence represents an important step within the overall process of international criminalisation, never developed in global politics. The process of international criminalisation was never completed in piracy’s case, and the prevalent view that piracy amounts to an international crime is fundamentally misplaced. Rather, piracy is better conceived as a transnational crime.
Conclusion
Focusing on piracy and international criminalisation, this article contributes to recent scholarship on the historical construction of international crimes. Beginning with the premise that international crimes are historically contingent acts, this literature has shown how their construction is the consequence of socio-political processes, including: active negotiation through social, legal, and political processes of meaning making;Footnote 192 discursive acts of power relations that operate to relegate particular forms of violence to the legal periphery;Footnote 193 and strategies and practices of contestation by legal professionals.Footnote 194 Drawing on the concept of international criminalisation, this article illuminates a further way in which international crimes are not simply the result of formal legal doctrine but also constitute political acts and cultural products.
As acts that embody an altogether unique type of norm in global politics, an international criminal norm, the establishment of an international crime involves processes of norm-formation. More specifically, it requires the development of international agreement amongst social actors that an act constitutes internationally criminal conduct, as opposed to merely unlawful or wrongful behaviour in global politics, and that it ought to assume a particular form as a crime under international law. Having also shown how it was shared understandings amongst legal diplomats that mattered in piracy’s case, this article has also demonstrated the important role that these social actors have within the overall process of international criminalisation.
The article also adds to critical perspectives on the disciplinary history of international criminal law (ICL), particularly those that challenge piracy’s foundational status in these narratives. According to mainstream ICL history, piracy is intricately connected with ICL’s origins: it was the first offence to give rise to universal jurisdiction and therefore has special status as the first international crime. The figure of the pirate, moreover, is regularly invoked as the first enemy of mankind. As the conventional narrative emphasises, contemporary ICL is indebted to the historical treatment of pirates in two critical ways: firstly, the criminalisation of other atrocities in global politics is a logical extension of long-standing views that piracy constitutes an international crime due to its heinousness; and secondly, the historical basis for the expansion of modern universal jurisdiction lies with how piracy has always been subject to unique jurisdictional rules under international law.Footnote 195 More critical approaches to ICL have, however, exposed this founding narrative as a romanticised myth. These new legal histories of piracy have demonstrated the following: piracy was never regarded as extraordinarily heinous;Footnote 196 calls for universal jurisdiction were simply rhetoric labelling, as piracy was consistency treated as an offence under municipal law in state practice;Footnote 197 pirates were the enemy, not of mankind, but of particular men with particular political projects;Footnote 198 and the role of the pirate has a structural role in wider political constructions of humanity – and by extension, inhumanity – within Western philosophical traditions.Footnote 199 Similarly, this article disrupts conventional ICL narratives by demonstrating how the common portrayal of piracy as an international crime is misplaced. The process of international criminalisation never took place in piracy’s case, and therefore, it is more historically accurate to characterise piracy as a transnational crime, an activity that states collectively agreed to regulate, control, and suppress through an international treaty.
Acknowledgements
I am very grateful to the three reviewers for their insightful comments and feedback, as well as the editorial team at Review for International Studies. For valuable support, advice, and encouragement behind-the-scenes, I am indebted to Julia Carter, Joe Gerlach, Jane Kirkpatrick, and Henrique Tavares Furtado. I also wish to express deep gratitude to Samira Carys Gerlach for what words alone cannot fully express.
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