Immediate post World War I problems were approached and “solved” by the
application of a “piracy by analogy” view. This had the advantage of applying a
recognized universal norm, but the disadvantage of utilizing one which had never
been accurately and conclusively defined. The needle was successfully threaded by
either allowing disagreeing states to “opt out” or, more successfully, by closely
defining the actual prohibited activity.
2.3 The International Law Commission Draft (1956)
and the Geneva Convention on the High Seas (1958)
Preliminary work done on piracy by the International Law Commission during the
1950s was based in large part on Harvard Law School’s Research on International
Law draft on piracy.
20 According to Myres McDougel and W.T. Burke, this
discussion was influenced by Chinese nationalist interception and seizure of vessels
and cargo bound from Communist Chinese ports. The Soviet bloc argued that action
by warships and by individuals seeking political ends, could constitute piracy, and
cited the Nyon Agreement as precedent. In the end, the Commission voted to retain
the words “for private ends” in the definition of piracy.
21
The 1958 Convention on the High Seas, in turn, relied on the International Law
Commission draft, with the ensuing discussions a general microcosm of the ILC
debates. Opposition to the draft generally took two tacks. One was that “‘piracy no
longer constituted a general problem, and its suppression was already the subject of
numerous international treaties with which the Commission’s articles might conflict.’”
22 The second (Soviet bloc) approach backed the approval of a single article
requiring States “‘to take proceedings against and to punish acts of piracy, as defined
by present international law, and to co-operate to the fullest extent in the repression
of piracy.’”
23 It was argued that the definition of piracy:
did not accord with existing rules of international law and failed to enumerate all the
categories of acts which were encompassed by that concept. Furthermore, the definition
erroneously included acts committed on terra nullius, and . . . [excluded] attacks made in the
territorial sea or on the mainland by vessels coming from the high seas and afterwards
escaping thither. Finally, the most serious omission was the failure to mention piracy for
political reasons. In fact, the notion of piracy put forward . . . was an obsolete one, and no
attempt had been made to legislate for the dangerous forms which it could take at the present
time. Though it would have been desirable to elaborate a new definition, that would be
impossible in the time available; hence the joint amendment had been drafted to cover all
acts of piracy that were liable for prosecution under the municipal laws of all States.
24
20 See Rubin (1998), p. 349.
21 Menefee (1990), p. 198.
22 Menefee (1995), p. 26.
23 Id. (footnote omitted).
24 Id.
A Century of Piracy Treaties: An Overview for the Future
551
application of a “piracy by analogy” view. This had the advantage of applying a
recognized universal norm, but the disadvantage of utilizing one which had never
been accurately and conclusively defined. The needle was successfully threaded by
either allowing disagreeing states to “opt out” or, more successfully, by closely
defining the actual prohibited activity.
2.3 The International Law Commission Draft (1956)
and the Geneva Convention on the High Seas (1958)
Preliminary work done on piracy by the International Law Commission during the
1950s was based in large part on Harvard Law School’s Research on International
Law draft on piracy.
20 According to Myres McDougel and W.T. Burke, this
discussion was influenced by Chinese nationalist interception and seizure of vessels
and cargo bound from Communist Chinese ports. The Soviet bloc argued that action
by warships and by individuals seeking political ends, could constitute piracy, and
cited the Nyon Agreement as precedent. In the end, the Commission voted to retain
the words “for private ends” in the definition of piracy.
21
The 1958 Convention on the High Seas, in turn, relied on the International Law
Commission draft, with the ensuing discussions a general microcosm of the ILC
debates. Opposition to the draft generally took two tacks. One was that “‘piracy no
longer constituted a general problem, and its suppression was already the subject of
numerous international treaties with which the Commission’s articles might conflict.’”
22 The second (Soviet bloc) approach backed the approval of a single article
requiring States “‘to take proceedings against and to punish acts of piracy, as defined
by present international law, and to co-operate to the fullest extent in the repression
of piracy.’”
23 It was argued that the definition of piracy:
did not accord with existing rules of international law and failed to enumerate all the
categories of acts which were encompassed by that concept. Furthermore, the definition
erroneously included acts committed on terra nullius, and . . . [excluded] attacks made in the
territorial sea or on the mainland by vessels coming from the high seas and afterwards
escaping thither. Finally, the most serious omission was the failure to mention piracy for
political reasons. In fact, the notion of piracy put forward . . . was an obsolete one, and no
attempt had been made to legislate for the dangerous forms which it could take at the present
time. Though it would have been desirable to elaborate a new definition, that would be
impossible in the time available; hence the joint amendment had been drafted to cover all
acts of piracy that were liable for prosecution under the municipal laws of all States.
24
20 See Rubin (1998), p. 349.
21 Menefee (1990), p. 198.
22 Menefee (1995), p. 26.
23 Id. (footnote omitted).
24 Id.
A Century of Piracy Treaties: An Overview for the Future
551