By Laurence Teillet, PhD Candidate at Nottingham Trent University

To paraphrase Jack Sparrow in The Curse of the Black Pearl, if the International Law Commission (ILC) was waiting for the opportune moment to suggest a reform of international piracy law, that was it. In 2019, the Commission emphasised the need for further research on piracy’s legal definition and re-established a working group to focus on preventing and repressing piracy and armed robbery at sea. It recognised that, despite the extensive amount of international, regional, and national law, there are still important issues of international law that are uncertain or underdeveloped and could benefit from study, codification, and progressive development.

However, its first report on the prevention and repression of piracy and armed robbery at sea, made public on 06 May 2023, has failed to answer the most pressing challenges and pitfalls linked to the crime’s definition.

This post begins by outlining the challenges posed by the UNCLOS piracy definition and the associated risks. It proceeds to analyse the ILC report, emphasising its inadequacy in addressing these challenges. Finally, it puts forth proposed solutions to overcome these issues.

Unveiling UNCLOS’ piracy definition challenges: exploring the violence and private ends requirements

According to Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), piracy is described as “any illegal act of violence committed for private ends and directed, on the high seas, against another ship or aircraft.” This definition has five key criteria: the act must involve violence, it must be illegal, it must be carried out for private ends, it must occur on the high seas, and it must involve at least two ships or aircrafts.

All of these criteria, without exception, have raised issues and sparked debates in academic literature. However, for the purposes of this piece, we will only focus on the violence and private ends requirements, which are generally considered to be the most problematic.

The “violence requirement” in Article 101 of UNCLOS has sparked controversy due to its vague language, as the term “any act of violence” could potentially include minor offences, while, historically, pirates are known for being involved in serious crimes such as murder, rape, theft, and participation in the slave trade. Therefore, some scholars argue that the UNCLOS definition of piracy is overly broad and encompasses acts that would not be traditionally viewed as piracy. As a result, domestic laws in several countries, such as the United Kingdom and France, restrict piracy to felony crimes and exclude misdemeanours and torts[1].

However, UNCLOS and case law have taken a different approach. In a notable case in 1986, Greenpeace activists were convicted of piracy by the Belgian Court of Cassation. The case centred on Greenpeace’s campaign against the dumping of titanium dioxide waste in the North Sea by NL Chemicals and Bayer, companies licensed by the Belgian government. During the campaign, Greenpeace activists boarded the NL Chemicals ship twice, painted on windows, attached themselves to the ship’s discharge pipes, and threatened to drop anchors. Other protesters dived in front of the dumping vessels to prevent them from releasing the waste. As a result of these actions, Greenpeace’s ship was seized, and the activists were charged with piracy. The question was raised as to whether the activists’ actions amounted to violence and were ‘serious enough’ to qualify as piracy. To legal scholarship’s surprise, the Court of Cassation deemed that “the plaintiffs used violence” and were, therefore, pirates under Article 101 of UNCLOS.

Dubner and Pastorius were amongst the scholars who strongly opposed the judgment and subsequent cases involving “environmental pirates,” arguing that calling activists who seek to prevent environmental harm “pirates” could lead to the criminalisation of a tort. In contrast, Kontorovich took a more pragmatic approach and argued that morality and decency should not be conflated with international law.

The private ends requirement is the criterion that has generated the most significant discussions and disagreement in the definition of piracy. The term “private” has been interpreted differently by legal scholars, leading to divided opinions. One group argues that the private ends requirement is intended to distinguish actions taken by private parties from those taken by a State or on behalf of a State. This position is rooted in the history of piracy, where privateers were licensed by States and considered an ‘acceptable form of piracy.’ In contrast, pirates acted for their own gain, rejected authority, and were viewed as enemies of society. This distinction between acceptance and rejection by States was central to the characterisation of piracy. Article 102 of UNCLOS further supports this view by stating that warships can commit piracy if their crew mutinies, implying that a warship can engage in piracy as soon as its crew disobeys State orders.

However, there is another group of legal scholars who argue that the interpretation of the private ends requirement as a distinction between State and private actors is not consistent with the preparatory work of UNCLOS and the political context in which the definition of piracy was adopted. The Harvard Draft, which played a key role in the development of international piracy law, defines piracy as “any acts of violence committed for private ends without bona fide purpose of asserting a claim of right”. From this perspective, some scholars see the private ends requirement as reflecting a private/political dichotomy, under which any act of violence undertaken for a political end would not be considered piracy. According to this view, the intention of the drafters was to prevent States from interfering with insurgents who acted for public ends on the high seas and avoid the difficulties associated with determining the rights and legitimacy of insurrectionist movements.

However, this view has important limitations. Drawing a line between political and non-political actions is a hazardous exercise prone to biases. While legal scholarship and civil society have been quick to condemn the convictions of Sea Shepherd and Greenpeace for piracy based on this private ends requirement, arguing that environmentalism was a political aim and therefore could not qualify as piracy, other causes have not been viewed with the same lens. For instance, while Somali piracy emerged to fight illegal waste dumping and foreign overfishing in Somalia’s waters, not once in the dozens of Somali pirate trials around the world has this been considered as potentially defeating liability – as rightly argued by Kontorovich.

In addition to these potential biases, the private/political dichotomy runs counter to the essence of piracy, which is inherently political. Pirates during the Golden Age were like powerful States, some argue even more efficient than actual States, and were motivated by the pursuit of profit. Their existence, organisation, and ideology were all political in nature. It is important to acknowledge that pirates were not merely criminals seeking personal gain, but political actors who challenged the dominant order by their very existence.

Sailing across the hazards of UNCLOS’ piracy definition: implications for political direct action and the principle of legality

The UNCLOS definition, as it stands, allows for minor acts of violence for political ends to qualify as piracy. Piracy gives rise to universal jurisdiction, meaning that any State can arrest, prosecute, and sentence individuals for piracy. Consequently, any form of political direct action on the high seas, which resorts to assertive methods, can be prosecuted as piracy, regardless of the individual’s intentions or the cause they support.

This raises concerns about the potential misuse of piracy as a legal tool to target individuals based on their political beliefs and ideologies. While violence should not be condoned, there are other legal avenues available to prosecute individuals for violent acts. Triggering universal jurisdiction for direct action on the high seas appears excessive and risks undermining freedom of speech and the right to protest – which includes a protection of the means used to convey opinions.

The lack of clarity and foreseeability in the current definition of piracy poses another major problem. As demonstrated earlier, there are considerable hesitations and disagreements around all of its criteria, which violates the principle of legality – the foundation of penal fairness. This principle asserts that no act may be punished by a law that is not sufficiently clear to provide notice that the act was prohibited at the time it was committed. If highly qualified scholars from various disciplines cannot foresee how Courts will interpret piracy with certainty and disagree so seriously on its criteria’s meaning and implications, it is doubtful that individuals prosecuted for piracy can do so either. This issue was raised by Sea Shepherd, during its piracy prosecution in the Institute of Cetacean Research case, which pointed out that while there is a universal agreement that piracy is a fundamental crime under international law, the content of the piracy definition is not well-settled. As such, they argue that the content of piracy’s definition is not sufficiently clear to support jurisdiction.

Navigating uncertain waters: evaluating the ILC’s Report on the challenges in the piracy definition and proposing solutions

The international community is aware of these challenges and addressing them was a key focus of the International Law Commission’s 2019 report and the creation of a working group to focus on preventing and repressing piracy and armed robbery at sea. The ILC’s first report on the subject released on 6 May 2023, however, falls short of expectations with regard to the issues identified above.

Indeed, the proposition of draft articles to reform piracy included in the report is identical to the current definition under UNCLOS, with no thresholds of violence proposed, no clarification on how the private ends requirement should be interpreted, and the illegal requirement maintained without further explanation. Consequently, none of the above-mentioned issues are addressed or resolved by the report.

This is disappointing because adequate solutions for these issues exist and have been raised in the literature. Hence, scholars have proposed ways to clarify the private ends requirement in a manner that would prevent biases and ensure that the offence is not misused. For example, Constantinople has proposed a two-stage test to determine whether an action fulfils the private ends requirement and, therefore, qualifies as piracy.[2] The first stage is to determine whether the action is taken in favour of or against a State, regardless of whether it is linked to a State’s order. If the answer is no, the action is considered to be for private ends and qualifies as piracy. If the answer is yes, the second test is carried out: is the action discriminated against the State in question? If the answer is no, the action is still considered to be for private ends and qualifies as piracy. If the answer is yes, the action is for public ends and does not qualify as piracy.

According to this interpretation, environmental activists’ direct action on the high seas would not be piracy since their actions are directed against a State harming the environment and they target the companies licensed by States carrying out the harm. On the other hand, Somali pirates would still qualify as pirates as they may act against a State or multiple States, but their actions are indiscriminate as they attack any passing ship. Therefore, they would fail the second stage of the test and qualify as pirates. This interpretation of the private ends requirement would also align with the origins and historical meaning of piracy, emphasising the importance of the indiscrimination criterion.

The ILC’s proposal to maintain the status quo regarding piracy’s definition is disappointing news for those concerned about legality and human rights. However, we can remain hopeful that future reports will advocate for a more substantive evolution of the piracy definition, which is currently flawed and requires reworking. Even minor changes that reflect current State practices and society’s evolving understanding of piracy could prevent its misuse as an ideological tool and mitigate potential biases that reinforce colonial mentalities.

Photo by Elena Theodoridou, free Unsplash license

[1] For instance, Blackstone’s Commentaries in the UK specifies that piracy committed on land would have been a felony, while André Dulait’s report to the French Senate recommends limiting piracy exclusively to the most severe infractions, which would also amount to crimes only.

[2] Accessible through the HeinOnline database: George R. Constantinople, ‘Towards a New Definition of Piracy: The Achille Lauro Incident’ (1983) 26 Virginia Journal of International Law, pp. 723-754.