7.2 PRECEDENT OF ‘PIRACY’.

7.2.1 Introduction

It will be said in opposition to the reliance which I place on the application of the doctrine of adoption for my present purposes that, whilst the above precedents and others are authority for the limited adoption of certain aspects of well established customary international law, they are authority for that only in so far as it allows or permits the application of certain legal principles to the determination of a pre-existing common law cause of action or dispute “when legimitate occasion arises” to do so. While, the foundation for such a cause of action derives, in the first place, from a breach of ordinary domestic (ie unadopted) common law. For example, that the foundation for the injured diplomat’s cause of action arises from an allegation by him of common place assault or false imprisonment, disclosed at domestic common law, whilst merely his claim to diplomatic immunity or privilege, which is nonetheless fully involved in determining that case, derives from the adoption of principles of international law. Further, and contrariwise, that in the present instance I rely upon customary international law instead to disclose the very existence and definition of the crime, which I accuse the interested parties of having committed.

I refute the substance of such an interpretation of the above authorities in any event. Close examination of the facts of many of those cases will, in fact, reveal that without the reference to the adopted element of international law being applied to the corpus delicti of the cause of action itself, then such a cause would not in fact have lain, the provisions of the ‘ordinary’ or domestic common law alone being insufficient in the circumstances. However, I do recognise that specific authority is called for, in order to substantiate the proposition that the English common law is familiar with and has in the past readily been able to adopt sufficient of the establish customary law of nations, “to its fullest extent”, so as to in effect thereby create the cause of action in the first place, specifically and for the purposes of the criminal law, to create the definition of the offence alleged, all be it adopted from international customary law..

The precedent upon which I specifically place reliance is, of course, piracy. Particularly, what is know as piracy jure gentium, (ie piracy under international law) as opposed to statutory piracy.

7.2.2 Piracy and the Principle of “Universal Jurisdiction”.

“ On the contrary, in the case of what is known as piracy by the law of nations, there has been conceded a universal jurisdiction under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come. I say “piracy by the law of nations”, because the municipal laws of many States denominate and punish as “piracy” numerous acts which do not constitute piracy by the law of nations, and which therefore are not of universal cognizance, so as to be punishable by all nations. Piracy by the law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations ; and as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind - hostis humani generis - whom any nation may in the interests of all capture and punish. “

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.70 per Mr Moore

In 1934 the Judicial Committee of the Privy Council heard the matter of In re Piracy Jure Gentium [1934] AC 586 (PC) which is now the leading English authority on the topic. According to the summary of the facts of the case, as appears at the beginning of the opinion of Lord Sankey, the Lord Chancellor, the following had occurred. On January 4 1931 on the high seas (ie in international waters) a number of armed Chinese nationals, while cruising in two Chinese junks, had pursued and attacked a Chinese cargo junk with intent to rob it.

The master of the cargo junk attempted to escape and a chase ensued for more than half an hour. While the chase was still in progress the steamship Hang Seng approached the pirate junk, joined shortly after by the steamship Shui Chow. The officers in command of these merchant vessels intervened and through their agency the pirates were eventually taken in charge by the Commander of HMS Somme, which had arrived in consequence of a wireless telegraphy report. The pirates were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to a question of law which they posed “whether piracy occurred in circumstances where no actual robbery had taken place.” The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary to support a conviction of piracy and the accused were accordingly acquitted. The case came before the Privy Council by way of a prerogative order to consider whether that decision was correct in law.

Before citing Lord Sankey specifically on the issue of universal jurisdiction, it is instructive to simply note first that the pirate defendants in this case were Chinese nationals, their victims or would be victims were Chinese nationals also and the offence took place on the high seas (ie in international waters); and yet, despite all of this, at no point did the Privy Council question or doubt for an instant the right of His Majesty’s courts in Hong Kong to exercise their criminal jurisdiction over these alleged Chinese pirates, though not British subjects, and though their criminal actions had not taken place in British territorial waters.

“ With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes committed by its own nationals wherever committed, it is also recognised as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere; Grotius (1583-1645) “De Jure Belli ac Pacis,” vol.2, cap.20, para 40.”

In Re Piracy Jure Gentium [1934] AC 586 (PC) @ p.589 per Lord Sankey L.-C.

Of course, for purpose of the present matter it is not necessary for me invoke the concept of a ‘universal jurisdiction' as respects the international law offence of the commission of a ‘crime against peace’ upon which I rely. Were it necessary to do so I have no doubt but that if there was ever a crime, in the long history of the evolution of customary international criminal law, which by its very nature, was unquestionably worthy of the epithet ‘hostis humani generis’, and thereby qualified for the application of such a universal jurisdiction, then that crime must be the waging of a war of aggression, a crime against the very peace of the world. However, whatever one can say about the accused persons, in the courts below (the interested parties to this action), they are beyond question British subjects, indeed I believe that each would admit to being an Englishman through and through. In any event the locus infracti, the place where they were when they committed their part in that offence ( ie. the seat of Government in London), was equally clearly within the territorial jurisdiction of that court, in the ordinary unqualified sense, and consequently no need for any “universal jurisdiction” arises in this instance.

No, it is rather my purpose in referring to that jurisdiction, in relation to the international law crime of piracy, to show that where as therein the English common law has been capable of adopting not only the substance of an offence so-called hostis humani generis, but moreover of expanding the criminal jurisdiction of the ordinary courts to try and punish persons normally beyond the reach of the law of this land ; then, a multi fortiori, there is nothing especially novel or bold or unprecedented in the suggestion, that this law is also clearly capable of exercising its jurisdiction in relation to British subjects who, whilst on British soil, commit the essential elements of such a crime similarly disclosed under customary international law.

7.2.3 Modern provisions on Piracy and Statute Law.

Section 26 (1) of the Merchant Shipping and Maritime Security Act 1997 provides as follows:

“ For the avoidance of doubt it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions of the United Nations Convention on the Law of the Sea 1982, that are set out in Schedule 5, shall be treated as constituting part of the law of nations.”

The language of this section is most unusual, even I would suggest exceptional. Clearly, it does not purport, in any way, to directly incorporate the provisions of the UN Convention on the Law of the Sea into statute law, still less does it seek to create an offence of piracy under the statute itself. Instead, it merely states that, “for the avoidance of doubt” , the specific provisions of Convention set out in the Schedule alone “shall be treated as constituting part of the law of nations”, as if there could be much doubt about that.

Schedule 5 to the Act of 1997 sets out the following Articles from the UN Convention on the Law of the Sea 1982:

“Article 101

DEFINITION OF PIRACY

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the 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 act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Article 102 Piracy by a warship, government ship or government aircraft whose crew has mutinied

....

Article 103 Definition of a pirate ship or aircraft.

“

Interestingly, and most instructively, having thus declared the definitional elements of the international law crime of high seas piracy, set out in the Convention, to be a part of international law, the Schedule does not then also reiterate the provisions of Article 105, which declares and repeats the customary principle of universal jurisdiction with respects to piracy:

“ Article 105

SEIZURE OF A PIRATE SHIP OR AIRCRAFT

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 or aircraft 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.“ (my emphasis)

Clearly, the provisions of the Convention, as such, cannot be made binding in domestic law, re the creation of a criminal jurisdiction in the courts for example, short of the specific statutory incorporation of those provisions by the unambiguous language of the statute, which it does not even purport to do. Any suggestion of the direct adoption of the convention provisions, as such, without statutory incorporation, would be in clear breach of the constitutional principle on the separation of powers (see above @ section 5.4.1 for example). Consequently, what these provisions must read as establishing is simply that, ‘for the avoidance of doubt’, and as respects the prosecution and punishment of the common law offence of piracy jure gentium, by a court in this country, the definition of the crime of piracy, as set out in Articles 101-103 above, is to be regarded as declaratory of the definition of piracy in customary international law also, and applied accordingly as to the adopted customary law offence, the universal jurisdiction for the punishment of which is also and similarly adopted from customary international law.

So much for piracy jure gentium committed by persons other than British subjects or nationals and outside of British territorial waters. But what of the case of high seas piracy committed by British subjects or nationals? Hopefully, not something one sees too much of these days ! (Note : clearly “piratical acts” committed within territorial waters, whether by British subjects/nationals or otherwise would be punishable as robbery, assault etc. pursuant to the relevant statutory provisions on the extension of the territorial jurisdiction of the ordinary criminal courts to cover British territorial waters: see Territorial Waters Jurisdiction Act 1878).

Clearly, piracy committed by British subjects, or from British ships, on the high seas was historically subject to quite a list of statutory provisions, including the Offences at Sea Act, 1536 ( 45 Hen.VIII c.15), the Piracy Act, 1698, and the Piracy Acts, of 1717, 1721, and 1744 respectively, all of which, however, have now since been repealed. Today, only three statutory provisions, all from the 19th. Century, still remain on the statute book; vis, s.5 of the Piracy Act, 1850, which makes provision in relation to the seizure and forfeiture of pirate ships and property etc., s.2 of the Piracy Act, 1837, which creates a specific offence of piracy with personal violence or lethal intent, and finally s. 3 of the same Act, the Piracy Act of 1837, which purports to set out a sentencing provision with respect to persons convicted of statutory piracy, although, as stated before, all of the relevant statutory provisions having been repealed, this sentencing provision is almost certainly now a nullity.

From all of this it follows that, as of today, were a British subject or national to be charged with piracy on the high seas, it would also have to be with piracy jure gentium at the common law, and having been adopted from the customary law of nations, as with the case of piracy by foreign nationals from foreign ships, there no longer being any provision creating an offence of statutory piracy, applicable to British nationals, remaining on the statute book.

Consequently, not only does the continuing common law offence of piracy jure gentium provide a well established precedent for the case of a customary law crime being adopted into the common law and applied by the criminal courts in this country as regards piratical foreigners ; but, moreover, today it also provides such a precedent as respects the application of international customary law, for the commission of such a crime, by a British subject or national, or equally from British territory, in the sense of being committed from a British ship, as well.

Hence, I am able to say with confidence that the notion of prosecuting a British subject, in a British criminal court, for the commission of a crime, the creation, definition and liability for which is fully adopted from the relevant provisions of well established customary international law, far from being a novel or brave or bold assertion, is in fact a well established principle of the English common law, which has been applied in practice and indeed over a period of centuries, though reaffirmed by informed reference to the provisions of an Act of Parliament passed as recently as 1997.

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