There was no authoritative definition of piracy before the adoption of the Gene- va Convention of the High Seas in 1958, even though piracy is ‘the oldest crime’ and universal jurisdiction was generally recognized.510 Oppenheim not- ed, however, that piracy in its original and strict meaning comprised at least three primary and essential elements.511 Firstly, it was an unauthorized act of violence.512 Second, the act occurred on the open sea.513 Third, the act was committed from one vessel against another vessel.514
This narrow definition became the source of disputes in defining the act of pira- cy.515 The two-vessel requirement excluded members of crew seizures or pas- senger takeover of ships from the notion of piracy because there was only one vessel in such cases.516 However, there were situations not included in the tra- ditional definition that were, in practice, also treated as acts of piracy.517 An example of such a situation was the mutiny by some members of crew who converted the ship, and goods on board it for their own personal use.
Another element often linked with piracy was animo furandi or intent to plun- der.518 According to a traditional definition of piracy, the motive for such an act was important in determining whether the act was piratical or not. However, there were exceptions. For instance, an unauthorized act of violence that in- cluded murder of crew members or passengers and/or destruction of goods on
508 Ibid. 509 Ibid. 510
Malvina Halberstam, 'Terrorism on The High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety ' (1988) 82 The American Journal of International Law 269, 272.
511 L. Oppenheim, International Law a Treatise (8 ed, 1967) 608-609. 512 Ibid. 513 Ibid. 514 Ibid. 515 Ibid. 516 Ibid 609. 517 Ibid. 518 Ibid.
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board occurring on the high seas, would, in practice, be considered piratical, even if there was no intent to plunder.519 There was thus no conformity among writers about the definition of piracy and some objected the traditional defini- tion of piracy. Oppenheim argues:
If a definition is desired which really covers all such acts as are in practice treated as piratical, piracy must be defined as every unauthorized act of vio- lence against persons or goods committed on the open sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel.520
Courts in the United States and Britain eventually took the position that piracy was any unauthorized act of violence committed on the high seas.521 One of the most prominent piracy cases in the United States in the nineteenth century was an 1820 decision, United States v. Smith (Smith).522 In Smith, the United States Supreme Court had to define piracy in circumstances where the defendant muti- nied with others on the ship while in service of the government of Buenos Aires.523 Mr Smith and his companions seized another ship and robbed a Span- ish ship on the high seas without commission from any authority. Smith was indicted with the crime of piracy under an Act of Congress on 3 March 1819. 524 The Act defined piracy under the municipal law of the United States by refer- ence to the charge of piracy under ‘the laws of nations’.525 Justice Story rea- soned that while the definition of piracy given by numerous authorities might differ from one another, ‘all writers agree that robbery or depredations on the sea, animo furandi, is piracy’.526
In England, the crime of piracy was originally defined as ‘the felony of robbery carried out on the high seas’.527 In the case of The Magellan Pirates,528 Dr.
519 Ibid. 520
Ibid.
521 Halberstam, above n 510, 273.
522 United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820). 523 Ibid 154.
524
Ibid.
525 Ibid. 526 Ibid 161.
527 See In re Piracy Jure Gentium [1934] A.C. 586 for a thorough discussion of the definition and his-
tory of piracy under English Law. One of the most famous definitions of piracy cited in this case was that given by Blackstone in Book IV of his Commentaries on the Laws of England, 1765–1769. Black-
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Lushington concluded that under English Law all persons were pirates who were guilty of piratical acts and that such acts were murder and robbery on the high seas.529 He also stated that while the municipal law of piracy may vary from state to state, all nations agreed that such acts when committed on the high seas were piratical.530
In a landmark English decision, In re Piracy Jure Gentium,531 the Privy Council decided that actual robbery is not an essential element in the crime of piracy ju-
re gentium, and that a frustrated attempt to commit piratical robbery is equally
piracy jure gentium.532 The court also stated that they supported the definition of piracy given by Kenny in his book ‘Outlines of Criminal Law’ (14th ed.1902, page 332), where he said that ‘piracy is any armed violence at seas which is not a lawful act of war’.533
One of the more controversial issues under customary law was related to the sta- tus of insurgents who had not been acknowledged as recognized belligerents.534 In Ambrose Light,535 a U.S. court argued that seizure of a vessel, without au- thorization by any government, was piratical act.536 The court then quoted Wheaton in defining piracy as ‘the offense of depredating on the high seas without being authorized by any sovereign state, or with commission from dif- ferent sovereigns at war with each other’.537
Other examples of the status of insurgents could be found in English Law. In the case of The Magellan Pirates,538 a Chilean officer and his followers committed
stone states: ‘the offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there’ (cited In re Piracy Jure Gentium [1934] A.C. 586, 593.
528 The Magellan Pirates, 164 ER 47 (1853). 529
Ibid 48.
530 Ibid.
531 In re Piracy Jure Gentium [1934] A.C. 586. 532 Ibid 599.
533
Ibid 598.
534 Halberstam, above n 510, 274.
535 United States v. The Ambrose Light 25 Fed.408 (S.D.N.Y.1885). 536 Ibid 412-413.
537
Ibid.
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an act of rebellion against their government.539 In addition, they seized British and American vessels, causing the death of nationals on those ships.540 Lush- ington argued that they were insurgents when they acted against the legitimate government, but pirates when they acted against third states neutral to the con- flict.541
In Republic of Bolivia v. Indemnity Mutual Marine Assurance Co.,542 the Eng- lish court applied the same analysis provided in the Magellan Pirates case. Un- der the treaty of 1867, Bolivia and Brazil agreed that the territory of Colonias was Bolivian.543 However, the Brazilians who had lived in the Colonias op- posed Bolivian control by establishing the Free Republic of El Acre and seizing a Bolivian ship, sent to suppress the insurrection.544 In deciding that the El Acre rebels were not pirates, the court agreed that, though the lack of formal or- ganization of the rebels might bring them with the definition of piracy under in- ternational law, the important distinction between insurrectionists and pirates was ‘that there was an organized expedition for the purpose of establishing a government in a particular territory, and… that interference with property was only intended, and only effected, so far as was necessary for that object, and not for the plundering of every one indifferently’.545 Therefore, it can be concluded that the El Acre rebels were not pirates because they acted for public ends against the government they sought to overthrow.
There was different treatment for insurgents who had not obtained any recogni- tion from their own government or any other nations. Hall argued that such in- surgents would be treated as pirates but others said that it was incorrect to treat insurgents struggling for political independence as pirates.546 It was generally accepted that a man-of-war or other public vessel under the orders of a recog- nized government, as long as she remained such, was not a pirate vessel. If the
539 Ibid 49. 540 Ibid. 541 Ibid 48. 542
Republic of Bolivia v. Indemnity Mutual Marine Assurance Co. [1909] 1 K.B. 785.
543 Ibid 787. 544 Ibid 786-89. 545 Ibid 790. 546
Wheaton Hall, International law (1st ed, 1884) 233-34 as cited in F. Wharton, 'Privacy and Privateering ' (1887) 3 Digest of the International Law of the United States 457, 471-472.
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public vessel committed an unauthorized act of violence, remedy had to be sought from her flag state, which had to punish the captain, and to pay damages where required.547
3.2.3 Piracy under International Law: Harvard Research Draft, Geneva Conven-